COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Noureddine, 2015 ONCA 770

DATE: 20151112

DOCKET:
C53774 and
    C53848

Doherty, Laskin and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chad Noureddine

Appellant

and

Her Majesty the Queen

Respondent

and

Richard Sheridan

Appellant

Victor Giourgas and Marco Sciarra, for the appellant
    Noureddine

Michael Lacy and Sam Scratch, for the appellant Sheridan

Roger Pinnock and Amy Alyea, for the respondent

Heard:  September 21 and 22, 2015

On appeal from the convictions returned by a jury
    presided over by Justice G. Ewaschuk of the Superior Court of Justice on
    November 22, 2010, and on appeal from the sentences imposed on December 15,
    2010.

Doherty J.A.:

I

overview

[1]

The appellants (Sheridan and Noureddine) and Bryan Smith were charged
    with first degree murder.  Michelle Sterling was charged on the same indictment
    with second degree murder.  Smith and Sterling eventually pleaded guilty to
    manslaughter and testified at the appellants trial.  A fifth person, Jennifer
    Dunsford, was separately charged and pled guilty to manslaughter.  She also testified
    against the appellants.

[2]

Sheridan and Noureddine were found not guilty of first degree murder,
    but guilty of second degree murder.  The trial judge sentenced Sheridan to life
    imprisonment without eligibility for parole for 18 years.  He sentenced
    Noureddine to life imprisonment without eligibility for parole for 15 years.

[3]

Sheridan and Noureddine appeal conviction and sentence.

[4]

Counsel for the appellants advanced several grounds of appeal, some
    applicable to both and some only to one or the other.  Counsel, however,
    focused on what they claim is a fatal flaw in the jury selection process.  For
    the reasons that follow, I accept that submission and would quash the
    convictions and order a new trial on the charge of second degree murder.

[5]

With one exception arising out of the trial judges answer to a question
    from the jury, I would reject the other grounds of appeal.  Most do not require
    comment in light of my conclusion with respect to the jury selection issue.  I
    will, however, address Noureddines argument that duress should have been left
    as a defence and his submission that the trial judge failed to properly answer one
    of the jurys questions.

II

the evidence

[6]

A brief summary of the evidence and description of the positions of the
    parties at trial will suffice for the purposes of these reasons.

[7]

The Don Yard (the Yard) is a lot located near Lakeshore Boulevard in
    Toronto used for storing movie trailers.  The owner of the Yard hired Sheridan
    to provide security.  He lived in a trailer at the Yard with his girlfriend,
    Jennifer Dunsford.

[8]

Sheridan used and trafficked in cocaine.  Noureddine and Smith, also
    cocaine users, knew Sheridan and assisted him in his drug trafficking business.
    They spent time at the Yard with Sheridan.  Michelle Sterling was a friend of
    the owner of the Yard.  At some point, she began to spend time at the Yard and
    became involved with Sheridan.

[9]

Sheridan dominated this entourage.  Each had a nickname indicative of their
    position in the hierarchy that existed within the group.  Sheridan was called Colonel
    and Noureddine was referred to as Captain.

[10]

Andre
    Pelliccione, the victim, knew the owner of the Yard.  On the evening of August
    21, 2008, he arrived at the Yard looking for the owner.  Noureddine, acting on Sheridans
    instructions, told Mr. Pelliccione he was not allowed in the Yard and demanded
    that he leave.  Mr. Pelliccione refused.

[11]

Sheridan
    confronted Mr. Pelliccione.  An argument ensued.  Pelliccione indicated that if
    he was forced to leave, he would be back, armed, and with friends.  Sheridan
    had reason to believe that Mr. Pelliccione, who had recently been released from
    the penitentiary, was a dangerous person.

[12]

As
    Sheridan and Mr. Pelliccione argued, Sheridan pepper sprayed Mr. Pelliccione.  Sheridan,
    Smith and Noureddine attacked Mr. Pelliccione, repeatedly punching and kicking
    him until he lay on the ground semiconscious.

[13]

On
    Sheridans orders, Mr. Pelliccione was dragged back into the Yard, badly hurt
    but still alive.  He was repeatedly beat, kicked and struck with rocks and a
    cement block by the three men, Ms. Dunsford and Ms. Sterling.  The beatings
    were administered at different places in the Yard, including inside of one of
    the trailers.  Eventually, Mr. Pelliccione succumbed to his injuries.  The
    forensic evidence indicated he was alive while he was in the trailer.

[14]

On
    Sheridans instructions, Mr. Pellicciones body was wrapped in a covering and placed
    in a dumpster.  Again, on Sheridans instructions, attempts were made to clean
    up the crime scene and destroy potential evidence, including the clothing worn
    by the attackers.

[15]

The
    Crown relied largely on the evidence of Smith, Dunsford and Sterling.  All
    three fell squarely within the
Vetrovec
 witness category and the
    trial judge instructed the jury accordingly.  While the evidence of the three
Vetrovec

    witnesses was consistent in many respects, there were differences in the details
    provided by each of those witnesses.

[16]

The
    Crown also relied on Sheridans statement to the police.  The Crown argued that
    the statement was a confession to murder.  The trial judge instructed the jury
    that the statement was admissible only against Sheridan.

[17]

It
    was the Crowns position that Sheridan was in charge during the events that
    culminated in Mr. Pellicciones death.  According to the Crown, it was Sheridan
    who initially attacked Mr. Pelliccione, decided that Mr. Pelliccione must die
    after the initial attack had incapacitated him, and orchestrated the subsequent
    assaults on Mr. Pelliccione.  The Crown contended that in his statement, Sheridan
    explained that he decided to kill Mr. Pelliccione to avoid Mr. Pelliccione seeking
    revenge against him for the initial assault.

[18]

The
    Crown argued that Noureddine fully participated in the attacks on Mr.
    Pelliccione from the beginning to the end.  He punched and kicked Mr.
    Pelliccione at various times and administered at least one severe blow to Mr.
    Pellicciones head with a large piece of concrete.

[19]

The
    Crown accepted that Noureddine acted on Sheridans instructions.  However, the
    Crown argued that his subordinate role in the murder, while reflective of the
    nature of his relationship with Sheridan, did not render Noureddines conduct
    any less culpable.

[20]

Neither
    Sheridan nor Noureddine testified.

[21]

Counsel
    for Sheridan acknowledged that Sheridan was guilty of manslaughter.  He submitted,
    however, relying on portions of Sheridans statements, that Sheridan was not
    present when the fatal blows were struck by the others and that he was
    undecided at that time whether Mr. Pelliccione should be killed or released.
    As the trial judge put it in his description of Sheridans position:

[Sheridan] lost control of his troops, who killed Pelliccione
    without his concurrence, without his direction, without his approval.

[22]

Counsel
    for Noureddine argued that the evidence of the Crown witnesses was so
    unreliable and inconsistent that the jury could not possibly make any
    determination as to the nature of Noureddines involvement in the various
    attacks on Mr. Pelliccione.  Specifically, counsel argued that the jury could
    not be satisfied beyond a reasonable doubt that Noureddine had participated in
    the attack on Pelliccione in the trailer during which the fatal blows were
    struck.  In his closing address, counsel submitted that the jury should acquit
    Noureddine of murder.  He said nothing about Noureddines liability for
    manslaughter.

[23]

At
    trial, counsel for Noureddine submitted that the trial judge should instruct
    the jury on the defence of duress.  The trial judge refused to do so holding that
    there was no air of reality to the defence.

III

the jury selection issue

(a)

The trial proceedings

[24]

Counsel
    for both appellants at trial advanced a race-based challenge for cause pursuant
    to s. 638(1)(b), relying on
R. v. Parks
(1993), 84 C.C.C. (3d) 353
    (Ont. C.A.), leave to appeal to SCC refused, 87 C.C.C. (3d) 61.  The merits of
    a challenge for cause must be decided by two triers selected according to s.
    640 of the
Criminal Code
.  If the triers decide that the challenge is
    true, that is that the prospective juror is partial, the juror cannot be sworn.
    If the triers decide that the challenge is not true, that is that the juror
    is impartial, the juror can be sworn, subject to the exercise of a peremptory
    challenge by either the Crown or the accused:
Criminal Code
s. 640(3);
R. v. Cloutier
, [1979] 2 S.C.R. 709.

[25]

Section
    640(2) dictates that the triers shall be the last two jurors sworn, or if no
    jurors have been sworn, two persons present and appointed by the court.
    Consequently, as the jury selection proceeds, the triers of the challenge rotate
    as jurors are selected to serve on the jury.  The case law uses the phrase
    rotating triers to describe this process for the selection of the triers.

[26]

Section
    640(2.2) provides for a single exception to the use of rotating triers to decide
    challenges for cause.  If the judge makes an order under s. 640(2.1), excluding
    all jurors during the challenge process, s. 640(2.2) provides that the same two
    persons should act as triers throughout the challenge for cause process.  Those
    triers are selected by the judge and do not become part of the jury that
    ultimately tries the case.  When this process is used, the triers are described
    as static triers.

[27]

At
    trial, counsel for Sheridan sought the exclusion of prospective (non-sworn) jurors
    from the courtroom during the challenge for cause process.  She was concerned
    that the answers prospective jurors might give during the challenge for cause
    could be affected if they had heard the answers given by previous prospective
    jurors and saw the results those answers had on the outcome of the challenge
    for cause.  Counsel made it clear that she was not asking for an order
    excluding sworn jurors from the selection process.  She made it equally clear
    that her client wanted rotating triers to be used to decide the challenges for
    cause.  Counsel said:

I would urge Your Honour for the reasons articulated by the
    various courts in the book of authorities that I have provided regarding the
    importance of getting an impartial jury, that we proceed in the fashion
    outlined in s. 640(2), and thats to have rotating jurors, since there is no
    application under s. 640(2.1) and thats certainly not an order that I am
    requesting.

[28]

Counsel
    for Noureddine also indicated that his client wanted rotating triers to
    determine the challenge for cause.
[1]

[29]

Crown
    counsel at trial expressed no preference as to the procedure to be followed.
    Counsel did indicate, however, that absent an order under s. 640(2.1), the
    trial judge could not use static triers.

[30]

The
    trial judge unilaterally decided that static triers would be used to decide the
    challenge for cause, and that he would exclude all jurors, sworn and unsworn,
    during the challenge for cause process.  His reasons for so holding are brief:

The application for rotating jurors is dismissed.  In as much
    as the sworn and unsworn jurors will be excluded, the triers of cause will be
    static jurors.  I find that the court has inherent jurisdiction to make that
    order.

(b)

The Arguments

[31]

Counsel
    for the appellants submits that the trial judges decision to use static triers
    is directly contrary to the provisions of the
Criminal Code
requiring the
    use of rotating triers unless an order under s. 640(2.1) has been made.
    Counsel contends that the failure to follow the
Criminal Code
provisions and use rotating triers resulted in a trial before a court
    improperly constituted to try the appellants.  Counsel further argues that the error
    is fundamental and renders irrelevant any inquiry into the potential prejudice to
    the appellants flowing from the error.  Alternatively, he submits that if
    prejudice is relevant, the Crown cannot satisfy the court that the error caused
    no prejudice to the appellants.  He submits that the
Criminal Code
clearly gives the accused the right to rotating triers unless the accused
    chooses to bring a motion under s. 640(2.1).  The trial judges ruling
    depriving the accused of that right must, on counsels submissions, create the
    appearance of unfairness and therefore prejudice the appellant.

[32]

Crown
    counsel concedes that the trial judge erred in using static triers.  She acknowledges
    that the
Criminal Code
specifically addresses the one situation in
    which static triers may be used and that the trial judge had no inherent
    jurisdiction to use static triers in other situations.  Crown counsel argues,
    however, that the trial judges error is not necessarily fatal and that a
    prejudice inquiry is necessary.  She submits that there is no prejudice, actual
    or inferred, flowing from the use of static triers.

(c)

Analysis

(i)

The error

[33]

I
    agree with counsel for the appellants and the Crown that the trial judge erred
    in using static triers.  The error is apparent from the language of the
    relevant provisions in the
Code
:

640(2) If the ground of a challenge is one that is not
    mentioned in subsection (1) and no order has been made under subsection (2.1),
    the two jurors who were last sworn  or, if no jurors have been sworn, two
    persons present who are appointed by the court for the purpose  shall be sworn
    to determine whether the ground of challenge is true.

(2.1) If the challenge is for cause and if the ground of the
    challenge is one that is not mentioned in subsection (1), on the application of
    the accused, the court may order the exclusion of all jurors  sworn and
    unsworn  from the court room until it is determined whether the ground of
    challenge is true, if the court is of the opinion that such an order is
    necessary to preserve the impartiality of the jurors.

(2.2) If an order is made under subsection (2.1), two unsworn
    jurors, who are then exempt from the order, or two persons present who are
    appointed by the court for that purpose, shall be sworn to determine whether
    the ground of challenge is true.  Those persons so appointed shall exercise
    their duties until 12 jurors  or 13 or 14 jurors, as the case may be, if the
    judge makes an order under subsection 631(2.2)  and any alternate jurors are
    sworn.

[34]

Section
    640(2) provides for rotating triers by requiring that challenges for cause
    shall be tried by the two jurors who were last sworn, or if no jurors have
    been chosen, by two persons selected by the trial judge.  The use of rotating
    triers to determine challenges for cause ensures that the challenges will be
    decided by a variety of triers in the course of the selection of the jury.  Rotating
    triers avoids the risk, present when static triers are used, that a single
    person, chosen as a trier, with a skewed sense of impartiality, could
    profoundly affect the jury selection process and ultimately the impartiality of
    the jury empanelled to try the case.

[35]

The
    use of rotating triers has been a feature of the Canadian jury selection
    process since at least 1892 when the first
Criminal Code
was enacted:
Criminal Code
, 1892, 55-56 Vic. Ch. 29, s. 668(8).  Prior to
    amendments in 2008, (S.C. 2008, c. 18, s. 26) the
Code
provided
    exclusively for the use of rotating triers:  see
R. v. W.V.
, 2007 ONCA
    546, at para. 19.  The 2008 amendments introduced the use of static triers, but
    only if an accused had successfully brought an application under s. 640(2.1)
    for the exclusion of all jurors, sworn and unsworn, from the court during the
    challenge for cause process.  A trial judge can make an order under s. 640(2.1)
    for the exclusion of all jurors only if satisfied that the order was necessary
    to preserve the impartiality of the jury.  Only the accused can bring a motion
    under s. 640(2.1).

[36]

An
    exclusion order made under s. 640(2.1) makes it impossible to use sworn jurors
    as rotating triers during the challenge for cause process.  Sworn jurors cannot
    simultaneously be excluded from the courtroom during the challenge for cause
    process and act as triers of the challenge.  Section 640(2.2) solved that dilemma
    by requiring the judge, if he made an order under s. 640(2.1), to use static
    triers, who do not become part of the jury, to decide the challenges for cause.
    On a plain reading of the amendments, static triers are not simply an
    alternative to rotating triers. They are used only where the exclusion of all
    jurors is necessary to preserve the impartiality of the jury ultimately
    selected.

[37]

The
    trial judge made no reference to the relevant provisions of the
Criminal
    Code
.  Specifically, he made no reference to the criterion in s. 640(2.1).
    He misapprehended the nature of the application and purported to dismiss the
    application for rotating jurors.  The appellants made no such application, but
    instead insisted on their statutory right under s. 640(2) to rotating triers, expressly
    indicating that no application was being brought under s. 640(2.1).  Absent that
    application, static triers could not be used in the challenge for cause process:
    see
R. v. Swite
, 2011 BCCA 54, 268 C.C.C. (3d) 184, at paras. 28-30.

[38]

The
    trial judge also referred to his inherent jurisdiction.  It is unclear
    whether he regarded that jurisdiction as the source of his power to make an
    order for the use of static triers, an order for the exclusion of all jurors,
    sworn and unsworn, from the challenge for cause process,
[2]
or both.  The trial judges power to control the jury selection process to make
    effective use of court resources and ensure fairness to all parties is well-recognized:
     see
R. v. Moore-McFarlane
, 56 O.R. (3d) 737, at para. 85 (C.A.).
    That authority does not, however, extend to orders that contradict the
    requirements of the
Criminal Code
:  see
R. v. Swite
, at para.
    28;
R. v. W.V.
, at para. 22.  The trial judges decision to use static
    triers despite the requirement in s. 640(2), that rotating triers be used, cannot
    be justified as an exercise of the trial judges inherent jurisdiction.

(ii)

The effect of the error on the convictions

[39]

Crown
    counsel submits that the failure to use rotating triers does not automatically
    vitiate the convictions.  She relies on provisions in Part XXI of the
Code
which provide that certain errors in the jury selection process have no effect
    on verdicts.  Counsel refers to ss.  643(3), 670 and 671.  Counsel also relies
    on s. 686(1)(b)(iv), the harmless error provision applicable to procedural
    errors.

[40]

Section
    643(3) provides that the failure to comply with certain specified
Criminal
    Code
provisions during the jury selection process does not affect the
    validity of the trial.  Section 640, the provision in issue here, is not one of
    the enumerated sections.  Section 643(3) cannot assist the Crown.

[41]

Sections
    670 and 671 can be considered together.  Both speak of omissions and irregularities
    in the jury selection process that will not affect the validity of any
    subsequent verdict.  Section 670(a) speaks of irregularities in the
    summoning or empanelling of the jury.  Section 671 refers to omissions to
    observe the directions set out in any act regulating the jury selection
    process.

[42]

This
    court described the operation of the predecessor to s. 670 in
R. v. Rowbotham
(1988), 41 C.C.C. (3d) 1, at p. 33:

We take it to be established by a considerable body of
    authority that both s. 572(3) and 598(a) [now s. 670] apply only to
    irregularities and have no application where the error is such that the accused
    has been deprived of a statutory right, or an error depriving an accused of the
    right to a trial by a jury lawfully constituted.

[43]

The
    trial judges ruling requiring static triers deprived the appellants of their
    statutory right in s. 640(2) to rotating triers:  see also
R. v. Varga
(1985), 18 C.C.C. (3d) 281 at p. 288 (Ont. C.A.).  Section 670 does not answer
    the appellants argument.

[44]

The
    reasoning in
Rowbotham
has equal application to s. 671.  That section
    seems directed at the authorities who are responsible for the various
    procedures associated with gathering and empanelling jurors.  An accuseds
    statutory right to rotating triers during the challenge for cause process cannot
    be described as a direction to those authorities.

[45]

R.
    v. Barrow
, [1987] 2 S.C.R. 694, at p. 717, provides a further reason for
    the inapplicability of ss. 670 and 671 to the error made in this case.  In
Barrow
,
    the Chief Justice noted that the predecessor sections to ss. 670 and 671 were
    applicable only when objections to the jury selection process are raised for
    the first time after a verdict.  The complaint with respect to the improper use
    of static triers was squarely raised at trial by the appellants.  Sections 670
    and 671 have no application.

[46]

Crown
    counsel relies primarily on s. 686(1)(b)(iv) to support her argument that the
    improper use of static triers is not necessarily fatal.  The section provides:

The court of appeal

(b) may dismiss the appeal where,

(iv) notwithstanding any procedural irregularity at trial,
    the trial court has jurisdiction over the class of offence of which the
    appellant was convicted and the court of appeal is of the opinion that the
    appellant suffered no prejudice thereby.

[47]

Section
    686(1)(b)(iv) operates in tandem with s. 686(1)(b)(iii) to avoid quashing
    convictions on account of procedural or legal errors that could not
    realistically have had any impact on the verdict, the fairness of the trial, or
    the appearance of the fairness of the trial.  Section 686(1)(b)(iv) was enacted
    in response to a series of cases holding that the improper exclusion of the
    accused during a trial, even if brief, inadvertent and non-consequential, gave
    rise to a loss of jurisdiction that could not be cured by resort to the
    harmless error of law provision in s. 686(1)(b)(iii).

[48]

Section
    686(1)(b)(iv) allows appellate courts to dismiss appeals despite procedural
    errors that lead to a loss of jurisdiction over the accused if the Crown can
    show that the error did not prejudice the accused.  In short, the legal
    harmless error analysis in s. 686(1)(b)(iii) is extended to cover procedural
    errors going to jurisdiction:  see
R. v. Cloutier
(1988), 43 C.C.C.
    (3d) 35, at pp. 43-46 (Ont. C.A.), leave to appeal to SCC refused, 50 C.C.C.
    (3d) vi.

[49]

Counsel
    for the appellants accept that s. 686(1)(b)(iv) can be applied to serious
    procedural errors that result in a loss of jurisdiction:
R. v. Cloutier
    (1988)
, at p. 51;
R. v. Khan
, [2001] 3 S.C.R. 823, at paras. 15-18.
    They contend, however, as acknowledged in
Cloutier (1988)
, that there
    are certain errors, including some errors made in the course of the jury
    selection process, that prevent a properly constituted trial court from coming
    into existence.  Counsel argues that these errors are so fundamental as to be
    beyond a mere procedural irregularity and cannot be cured by s. 686(1)(b)(iv).
    Counsel contends that the procedural irregularities going to jurisdiction that
    can be cured by the proviso assume a trial before a properly constituted trial
    court that has somehow lost jurisdiction:  see
R. v. Cloutier (1988)
,
    at p. 46 ;
R. v. Simon
, 2010 ONCA 754, 108 O.R. (3d) 337, at paras.
    119-21.

[50]

There
    is substantial support in the case law for the appellants submission.  In
R.
    v. Bain
(1989), 47 C.C.C. (3d) 250 (Ont. C.A.), this court considered the
    application of s. 686(1)(b)(iv) to the trial judges failure to follow the
Criminal
    Code
provisions relating to Crown peremptory challenges and Crown stand
    asides.  The trial judge had held the provisions unconstitutional.  In allowing
    the Crown appeal, Finlayson J.A., at p. 4, explained why the predecessor to s.
    686(1)(b)(iv) had no application to the error made by the trial judge:

In this case, we are dealing with a more fundamental matter.
    If the jury selection process does not comply with the relevant sections of the
Code
, the court never obtains jurisdiction to proceed to trial.  It is
    not a question of an apparent loss of jurisdiction during the trial because of
    the temporary absence of the accused.  It is rather a question of whether or
    not the court was properly constituted in the first place.

[51]

On
    appeal to the Supreme Court of Canada, the majority held that the impugned
    sections of the
Code
were unconstitutional, restored the acquittal and
    did not need to consider the possible application of the procedural curative
    proviso:
R. v. Bain
, [1992] 1 S.C.R. 91.  Gonthier J., speaking for
    the minority, would have upheld the constitutionality of the provisions.  His
    analysis of s. 686(1)(b)(iv), at p. 136, echoed that of Finlayson J.A.:

A jury is more than an incident or a procedural tool in a
    trial case.  The jury is the court, together with the trial judge.  If the jury
    is not constituted according to the rules, the court exists no more than if the
    judge had been unlawfully appointed.  In the case at bar, the problem is not one
    of application of the jury selection rules, which could have been saved by s.
    686(1)(b)(iv) of the
Code
.  The rules were changed.  The jury was
    selected pursuant to other rules than those set out in the
Code
.
    There was therefore no trial court properly constituted, and the proper
    sanction is annulment.

[52]

In
R. v. W.V.
and
R. v. Swite
, this court and the British
    Columbia Court of Appeal held that s. 686(1)(b)(iv) could not be used to render
    harmless the improper use of static triers to decide challenges for cause.  In
W.V.
,
    a case decided before the 2008 amendments to s. 640, Sharpe J.A. held, at para.
    26:

the trial judges failure to follow s. 640(2) cannot be
    described as a minor procedural irregularity.  Parliament expressly directed
    that jurors are to act as triers on the challenge for cause in a rotating
    fashion.  That statutorily mandated procedure specifically assigns jurisdiction
    to decide the important issue of the impartiality of each prospective juror to
    a new combination of triers.  By requiring that the triers rotate, s. 640(2)
    has the effect of ensuring, to the maximum extent possible, that the responsibility
    for determining the challenge for cause is shared by all jurors but the last
    juror selected.  By spreading the authority to decide the challenge for cause
    in this manner, s. 640(2) guarantees that a variety of views and perspectives
    will be brought to bear on the fundamental question of how the jury is to be
    constituted.
In my view, a departure from this carefully constructive
    scheme for deciding who shall sit in judgment of the accused cannot be
    described as a minor procedural defect, nor is it an error that can be cured by
    applying s. 686(1)(b)(iv) as that section has been interpreted by this court
    and by the Supreme Court of Canada.  The court that tried and convicted and the
    appellant was improperly constituted.  As the trial court never had
    jurisdiction to try the appellant, s. 686(1)(b)(iv) has no application.
[Emphasis added.]

[53]

In
Swite
, decided after the 2008 amendments, the Crown argued that the
    availability of static triers after the 2008 amendments, albeit only where an
    order had been made under s. 640(2.1), changed the nature of the error made by
    the trial judge who improperly used static triers and made the facts of
W.V.
distinguishable from the situation in
Swite
.  The Crown argued that
    because static triers were a possibility after the 2008 amendments, the
    improper use of static triers did not result in an improperly constituted court,
    but rather resulted in a procedural irregularity potentially curable under s.
    686(1)(b)(iv).  After a careful review of the relevant case law, especially
W.V.
, P
rowse J.A. held, at para. 54:

Here, I again find myself in agreement with the analysis of Mr.
    Justice Sharpe in
Vincent
[
W.V.
] in which he described the
    error as one depriving the accused of a trial before a properly constituted
    court  one consisting of a judge and a properly selected jury.  In this case,
    the jury was selected by a process disavowed by Mr. Swite and which effectively
    deprived him of his statutory right (albeit by default) under s. 640(2), in
    the absence of an application pursuant to s. 640(2.1), to be tried by a jury
    selected by rotating triers

[54]

On
    this appeal, Crown counsel takes up the argument rejected in
Swite
.
    She submits that a distinction must be drawn between the use of a procedure
    that is never statutorily available and the use of one that is available,
    albeit not in the circumstances of the particular case.  Crown counsel argues
    that only the former renders the court improperly constituted.

[55]

I
    cannot accept the distinction urged by the Crown.  Just as in
W.V.
,
    the use of static triers in this case contravened the applicable
Criminal
    Code
provisions.  In
W.V.
, those provisions prohibited the use of
    static triers.  Under the present legislation, the
Code
equally
    prohibits the use of static triers unless: 1) the accused brings and motion for
    the exclusion of all jurors during the challenge process, and 2) the trial
    judge determines that such an order is necessary to protect the impartiality of
    the jury.  In
W.V.
, and in this case, the process used to determine
    the appellants challenges for cause directly contravened the controlling
Criminal
    Code
provisions.

[56]

Counsel
    for Mr. Sheridans analogy to cases in which the courts jurisdiction depends
    upon the election of the accused as to her mode of trial is an apt one.  If an
    accused has an election, a courts authority to try the particular offence
    depends on the accuseds choosing to be tried in that court.  Absent that
    election, a conviction cannot stand.  It is no answer to assert that since the
    court would have had jurisdiction, had the accused elected trial in that court,
    and the accused received a fair trial, she suffered no prejudice and the
    verdict should stand:  see
R. v. Varcoe
,
2007 ONCA
194
, 219 C.C.C. (3d)
    397
, at paras. 14-22;
R. v. Dwyer and Lauzon
, 42 C.C.C. (2d)
    83, at 91-93 (Ont. C.A.), rev. by
[
1979
] S.
C.
J. No.
    117,
at
p.
7-9
;
see also
R. v. Pottinger
(1990)
, 54 C.C.C. (3d) 246
,
at
p.
251-52
    (Ont. C.A
.), leave to appeal to the SCC refused,
    [1990] S.C.C.A. No. 201.
Just as in the election cases when the proper
    constitution of the court depended on the accuseds choice of that forum for
    her trial, the proper constitution of the jury, and hence the court depends on
    the accused effectively requesting the use of static triers by bringing a
    motion under s. 640(2.1).

[57]

I
    agree with the analysis and holding in
Swite
.  In doing so, I
    emphasize that in
Swite
, as in this case, the appellants did not want to
    use static triers to determine the challenges for cause.  They made their
    position clear to the trial judge.  It may be that s. 686(1)(b)(iv) could be
    applied if an accused had agreed to the use of static triers, but had failed to
    bring the required motion under s. 640(2.1).  An accuseds willingness to use
    static triers may be enough to render the court properly constituted during the
    selection process.  The failure to bring the appropriate motion may be characterized
    as a procedural irregularity potentially curable under s. 686(1)(b)(iv).  Again,
    the analogy to the election cases is helpful.  Some cases have applied s.
    686(1)(b)(iv) to cure errors in the election procedure when it was clear that
    the accused was tried in the forum of his choice:  e.g. see
R. v. Roy
,
    2010 BCCA 448, at paras. 6-10.

[58]

In
    acknowledging that the consent of an accused to the use of
static triers may have an impact on the availability
    of s. 686(1)(b)(iv), I do not intend to depart from the analysis in
W.V.
In
W.V.
, the accused had agreed to the use of static triers,
    but at the time,
the
Criminal Code
provisions demanded the
    use of rotating triers to determine challenges for cause in all situations.

[59]

Crown
    counsel referred to four cases in which this court subjected errors made in the
    jury selection process to the harmless error inquiry under s. 686(1)(b)(iv).  In
    three of those cases,
R. v. Katoch
, 2009 ONCA 621, 246 C.C.C. (3d) 423;
R. v. A.B.
(1997), 33 O.R. (3d) 321; and
R. v. Cece (
2004)
, 72 O.R. (3d) 321, the errors did
    not involve the failure to comply with a specific statutory component of the
    jury selection process, but instead involved judicial orders which this court
    found went beyond the power of the trial judge to control the selection
    process.  For example, in
Katoch
, the trial judge allowed the accused
    to withdraw a challenge for cause when prospective jurors answered no to the
    first three questions posed in the challenge for cause process.  The
Code
says nothing about withdrawing a challenge for cause.  Rosenberg J.A., after
    acknowledging that the case law indicated that the trial judge did not have the
    power to withdraw the challenge once it had commenced, said, at para. 55:

However, that error is of a different nature than that in [
W.V.
]
The trial judge in [
W.V.
]
failed to comply with a specific
    statutory component of the jury selection process.  In contrast, the
Criminal
    Code
does not expressly prohibit a party from withdrawing or abandoning a
    challenge for cause, as happened in this case.  Additionally, the procedure
    followed in this case did not undermine the impartiality of the jury.

[60]

In
    the fourth case,
R. v. Brown
(2005)
, 194 C.C.C. (3d) 76, (Ont. C.A.), the trial judge had
    granted the accused and the Crown an extra peremptory challenge after excusing
    a selected juror during the ongoing jury selection process.  This court held,
    at paras. 45-49, that the trial judge did not have the inherent power to
    increase the number of peremptory challenges allocated by the relevant
    provisions of the
Criminal Code
.  The court, however, at para. 44, characterized
    the error as an error of law and applied s. 686(1)(b)(iii), the harmless
    error provision applicable to errors in law.  Clearly, the court did not regard
    the error as jurisdictional much less as an error that impacted on the constitution
    of the court.

[61]

Consistent
    with
W.V.
and
Swite
, I would hold that this court was
    improperly constituted to try the appellants.  The verdicts must be quashed for
    that reason alone.  I will, however, address the prejudice argument as, in my
    view, counsel for Sheridan is correct in his submission that the misuse of
    static triers to determine the challenge for cause resulted in prejudice to the
    appellants.

[62]

The
    prejudice inquiry mandated by s. 686(1)(b)(iv) looks both to actual prejudice
    to the accused, and prejudice to the due administration of justice:  see
R.
    v. Kakegamic
, 2010 ONCA 903, 265 C.C.C. (3d) 420, at paras. 35-39;
R.
    v. Sinclair
, 2013 ONCA 64, 300 C.C.C. (3d) 69, at paras. 21-25.  In
    assessing prejudice
when

a
    serious procedural error has been made, an appellate court may infer prejudice from
    the error without requiring the accused to demonstrate prejudice.  The Crown
    may of course rebut the inference of prejudice:
R. v. Khan
, at para.
    16.

[63]

An
    attempt to determine whether the appellants suffered any actual prejudice leads
    quickly to speculation.  It is impossible to say whether the improper use of
    static triers had any actual effect on the constitution of the jury ultimately
    selected to try the appellants.  Nor is it possible to gage the impact, if any,
    of the improper jury selection process on the impartiality of the jury
    selected.

[64]

In
    my view, the prejudice in this case lies in the negative effect the improper use
    of static triers, over the express objection of counsel, had on the appearance of
    the fairness of the proceedings and the due administration of justice.  Three
    factors combined to lead me to that conclusion:

·

The use of rotating triers to decide challenges for cause
    benefits the jury selection process;

·

Static triers are an alternative method used to determine
    challenges, but only where necessity dictates the use of static triers; and

·

It is for the accused and only the accused to decide whether to
    initiate the motion that may ultimately result in the use of static triers.

[65]

Using
    rotating triers to decide challenges brings at least two benefits to the jury
    selection process.  First, rotating triers avoids the risk that the entire jury
    selection process could be tainted by a single static trier who is unable or
    unwilling to properly assess the partiality of prospective jurors.    Second, the
    use of rotating triers gives most of the jurors who ultimately try the case a
    role in the selection of their fellow jurors.  That role potentially promotes
    both a sense of responsibility in individual jurors and of cohesiveness in the jury
    selected to try the case.

[66]

The
    preferred position afforded rotating triers in the challenge for cause process
    is apparent from the 2008 amendments.  Those amendments require the use of
    rotating triers except when an order has been made under s. 640(2.1) excluding
    all jurors during the challenge for cause process.  As outlined above, that
    order makes it impossible to use rotating triers during the challenge process.
    I read the amendments as acknowledging the value of rotating triers in the
    challenge for cause process.  That value may be sacrificed, but only if the
    judge is satisfied, on the accuseds motion, that the exclusion of all jurors
    is necessary to preserve the impartiality of the jury.

[67]

The
    amendments also recognize that the potential benefits of rotating triers are particularly
    important to an accused, as it is the accused who will usually challenge for
    cause.  The significance of rotating triers to the accused in particular is
    reflected in the amendments by allowing only the accused to bring the motion
    under s. 640(2.1) which, if successful, will lead to the use of static triers.

[68]

Ultimately,
    the trial judges order denied the appellants the benefits of using rotating
    triers to determine the challenges for cause made by the appellants.  Equally
    important, the denial of the benefit of rotating triers occurred in the face of
    clear statutory language providing that only the accused could bring the motion
    necessary to the use of static triers.  Finally, the denial occurred despite
    the express and repeated insistence of the appellants that rotating triers be
    used.  These factors combined to create the appearance of unfairness and
    compromised the due administration of justice.

(iii)

The
    effect of the error on the acquittals

[69]

The
    appellants were acquitted of first degree murder.  In the course of oral
    argument the court inquired as to the impact on the acquittals if, as the
    appellants contended, the error in the jury selection rendered the court improperly
    constituted to try the appellants.  Counsel provided helpful written
    submissions.

[70]

Crown
    counsel takes the position that the acquittals cannot stand.  She submits that
    if the court was not properly constituted to convict the appellants on the
    included charge of second degree murder, it could not be properly constituted
    to acquit the appellants on the main charge of first degree murder.  Crown
    counsel submits that if the court proposes to quash the convictions and order a
    new trial based on the error in the jury selection process, it should make an
    additional order under s. 686(6) of the
Criminal Code
requiring that
    the new trial be on the charge of first degree murder.

[71]

The
    Crown has not appealed the acquittals on the first degree murder charge.  Nor
    does the Crown seek leave to extend the time to bring an appeal from those
    acquittals.  Instead, the Crown submits that a new trial on the charge of first
    degree murder is the inevitable legal consequence of the position advanced by
    the appellants that the improper jury selection rendered the court improperly
    constituted to try the appellants.

[72]

The
    position taken by the Crown is a principled one.  I take the Crown to be acknowledging
    that it would be unfair and contrary to the spirit underlying the principle
    against double jeopardy were the Crown to seek to appeal the acquittals on
    first degree murder absent any suggestion that those acquittals were tainted by
    legal error.  The Crown submits, however, that no unfairness arises if the
    retrial on the first degree murder is the logical consequences of the
    appellants successfully arguing that the court was not properly constituted to
    try the charges against them.

[73]

The
    logic of the Crowns submission is difficult to deny.  How can a jury not be
    properly constituted to say the word guilty" in reference to the included
    charge of second degree murder, but be properly constituted to say the words
    not guilty in relation to the main charge of first degree murder?:  see
R.
    v. Ashini
(1989)
, 51
    C.C.C. (3d) 329, at pp. 335-36 (Nfld. C.A.);
Crane v. D.P.P.
, [1921] 2
    A.C. 299, per Lord Parmoor, at pp. 335-36.  Despite the logic, however, the
    anomalous result should the Crowns position be accepted is also evident.  The
    appellants, having successfully challenged their second degree murder
    convictions, would become the beneficiaries of an order placing them in
    jeopardy of convictions on the more serious charge of first degree murder.  The
    phrase pyrrhic victory comes to mind.

[74]

I
    would reject the Crowns submission for two reasons.  The first involves a
    consideration of the powers this court on an appeal from conviction and the second,
    an examination of the controlling case law.

[75]

If
    an accused appeals from conviction on an included offence, this court cannot
    set aside the acquittal returned on the main charge absent an appeal by the
    Crown from that acquittal:
R. v. Guillemette
, [1986] 1 S.C.R. 356, at
    p. 361; see also
R. v. Bird
(1952)
,
    104 C.C.C. 286, at p. 289 (Ont. C.A.).  Section 686(8), which allows this court
    to make orders ancillary to an order allowing an appeal from conviction if
    justice requires, does not extend to an order setting aside an acquittal
    returned on the merits on a related charge at the same trial:
R. v.
    Sullivan
, [1991] 1 S.C.R. 489, at pp. 505-506.

[76]

The
    Crown could have appealed the acquittal on the first degree murder charge. For appeal
    purposes, the acquittal on the first degree murder charge is distinct from the
    conviction on the included offence of second degree murder.  Section 676(2)
    gives the Crown a right of appeal on the main charge even if there is a
    conviction on the included offence. It follows in my view that the acquittal on
    the main charge is not put in issue when an accused exercises his right to
    appeal a conviction returned on the included offence. An order directing a new
    trial on the main charge of first degree murder, available had the Crown successfully
    appealed from the acquittal on that charge, cannot be regarded as an order
    ancillary to the order made on the appeal brought by the accused quashing his
    conviction on a charge of second degree murder.

[77]

Apart
    from an analysis of the powers available to an appellate court under Part XXI,
    binding authority examining the consequences of the kind of error that occurred
    in the jury selection in this case leads to the same result.  On those
    authorities, only the party whose interest was adversely affected by the error made
    in the jury selection process can rely on that error to set aside a verdict returned
    by the jury:
R. v. Cloutier (1979)
, at pp. 23-24;
R. v. Rowbotham
,
    at pp. 724-726.

[78]

In
Cloutier (1979)
, the accused was charged with importing a narcotic
    into Canada.  The jury acquitted.  The Quebec Court of Appeal allowed the Crown
    appeal, holding that the trial judge had wrongly excluded certain evidence and
    misdirected the jury.  Maynard J.A. also held that the trial judge had wrongly
    held that the accused could not peremptorily challenge a juror after
    unsuccessfully challenging that juror for cause.

[79]

The
    accused appealed to the Supreme Court of Canada.  The majority of that court
    held that the trial judge had not erred in excluding the challenged evidence
    and that his instructions to the jury did not demonstrate reversible error.
    The court did hold, however, that the trial judge had erred in denying the
    accused the right to exercise a peremptory challenge after a juror had been
    unsuccessfully challenged for cause.  The Crown argued that the error in the
    jury selection process, standing alone, vitiated the acquittal returned by the
    jury. The majority of the Supreme Court of Canada rejected this submission,
    allowed the appeal and restored the acquittal returned by the jury.

[80]

Pratte
    J., for the court on this issue, acknowledged at p. 724 that the error in the
    jury selection would have entitled an accused who had been convicted to have
    the conviction annulled without any demonstration of prejudice flowing from
    the error.  Pratte J. then considered whether the Crown could rely on that
    error as a basis for nullifying the acquittal returned by the jury.  In holding
    that the Crown could not rely on the error, Pratte J. distinguished between a
    relative nullity and an absolute nullity.
[3]
He explained that a relative nullity could be relied on only by a party whose
    personal interests had been adversely affected by the error.

[81]

Pratte
    J. next examined the nature of the error made in the jury selection process. He
    held that the denial of the accuseds right to peremptorily challenge
    prospective jurors was a right personal to the accused in which the prosecution
    had no interest.  He reasoned that the interests of the prosecution in the jury
    selection process were in no way compromised by the denial of the accuseds personal
    right to exercise a peremptory challenge after a challenge for cause had
    failed.  He explained at pp. 725-726:

The rights of the Crown as to the empanelling of the jury were
    respected in every particular.  The prosecution may not complain that
    appellants rights were violated for the simple reason that the rights were
    purely personal, and moreover the judges error with respect to the appellant
    was corrected by the verdict of acquittal.

[82]

In
Rowbotham
, this court applied
Cloutier (1979)
to a different
    error made in the jury selection process.  Under the
Criminal Code
as
    it stood at the time, the Crown was allowed to stand aside jurors.  The
Code
provided, however, that if the jury panel and any additional talesmen had been
    considered and rejected and a jury still not selected, the stand aside jurors
    had to be brought back for reconsideration. Under the relevant
Code
provisions, the Crown could not stand aside the same juror twice.

[83]

In
Rowbotham
the trial judge decided that instead of recalling the stand
    asides, he would continually augment the jury panel with additional prospective
    jurors from other jury panels.  After a detailed analysis of the relevant
    provisions of the
Criminal Code
, this court
said at p. 37
:

In the result, because the process actually adopted by the
    trial judge was not authorized by law, and deprived the appellants of a
    statutory right conferred on them by 571 of the
Criminal Code
,
the
    appellants were deprived of a trial by a jury lawfully constituted.  This error
    in itself requires a new trial.
[Emphasis added.]

[84]

Some
    of the accused in
Rowbotham
had been acquitted on some counts and
    convicted on others.  The Crown had not appealed the acquittals.  The Crown
    argued, however, that if the court was not lawfully constituted because of the
    error in the jury selection, the acquittals must also be set aside.

[85]

In
    rejecting the Crowns submission, this court, at p. 73, distinguished between
    verdicts that were void and those that were merely voidable:  see M.
    Friedland,
Double Jeopardy
, Clarendon Press 1969, at pp. 77-86.  Applying
    the analysis from
Cloutier (1979)
, the court held that the failure to
    recall the stand asides deprived the accused of a statutory right to have the
    stand asides reconsidered but had no negative impact on any right of the Crown
    in the jury selection process. Consequently, while the convictions were
    voidable at the instance of the accused, the Crown could not rely on the errors
    as a basis upon which to set aside the acquittals on other counts in the
    indictment.  Using the language of double jeopardy cases, the convictions were
    voidable but the acquittals were not.

[86]

The
    error that occurred in this case fits easily within the analysis provided in
Cloutier
    (1979)
and
Rowbotham
.  The
failure
    to use rotating triers to decide the challenge for cause as required by the
Criminal
    Code
denied the appellants the right to use rotating triers. That right is
    clearly as personal to the accused as is the right to exercise a peremptory
    challenge.

[87]

The
    failure to use rotating triers had no impact on any of the Crowns rights in
    the jury selection process, or in the manner in which the Crown proceeded
    during that process.  The Crown did not initiate the challenge for cause
    process, did not challenge any jurors for cause, and was for all intents and
    purposes a bystander throughout the challenge for cause process.  In my view,
    the improper use of static triers rendered the conviction on the charge of
    second degree murder voidable at the instance of the accused but had no impact
    on the acquittals returned on the main charge of first degree murder.

IV

the other grounds of appeal

[88]

Counsel raised several other grounds of appeal.  The court did not
    require submissions from the Crown on most of them. I will address the argument
    that duress should have left with the jury and the argument that trial judge
    failed to properly answer one of the jurys questions.

(i)

Did Noureddine have a defence of duress?

[89]

Noureddine
    was potentially liable for Mr. Pellicciones murder either as the perpetrator
    or an aider and abetter.  On a pretrial motion, the trial judge held that the
    statutory defence of duress in s. 17 of the
Criminal Code
, which
    denied the defence to perpetrators of murder, was unconstitutional.  He read
    the section down to allow for the defence in limited circumstances in murder
    cases:
R. v. Sheridan
, [2010] O.J. No. 4884 (S.C.).

[90]

The
    duress defence in s. 17 of the
Criminal Code
applies only to
    perpetrators.  The common law defence of duress is available to persons charged
    as aiders and abetters, including persons charged with murder:
R. v.
    Paquette
, [1977] 2 S.C.R. 189.

[91]

Subsequent
    to the trial judges duress ruling, the Supreme Court of Canada and this Court
    have examined the statutory and common law defence of duress in some detail and
    delineated the essential elements of the defence:
R. v. Ryan
, 2013
    SCC 3, [2013] 1 S.C.R. 14;
R. v. Aravena
, 2015 ONCA 250, 323 C.C.C.
    (3d) 54.  I will assume without deciding that the statutory defence of duress
    is available to a person charged with being the perpetrator in a murder.  I
    also consider counsel for Noureddines submission that the trial judge should
    have left the defence of duress with the jury on the basis that the defence as
    described in
Ryan
and
Aravena
applies to both the statutory and common law defence of duress
.

[92]

The
    duress defence is available in very limited circumstances.  The rationale for
    limiting the availability of the defence is fully explained in
Ryan
, repeated in

Aravena
and need
    not be restated here.

[93]

As
    with any defence, duress can only be left with the jury when there is an air of
    reality to that defence.  An air of reality exists if it is realistically open
    to a jury, on the entirety of the evidence, to have a reasonable doubt as to
    the existence of each of the essential elements of the duress defence:  see
R.
    v. Aravena
, at para. 27.  The six constituent elements of the duress
    defence are concisely summarized in
Ryan
, at para. 81.

[94]

I
    will not examine each element, but will focus on the requirement that there be
    no safe avenue of escape for the person who claims to have acted under duress.
    The safe avenue of escape requirement in the defence is explained in
Ryan
,
    at para. 65:

In other words, a reasonable person in the same situation as
    the accused and with the same personal characteristics and experience would
    conclude there was no safe avenue of escape or legal alternative to committing
    the offence.  If a reasonable person similarly situated would think there was a
    safe avenue of escape, the requirement is not met and the acts of the accused
    cannot be excused using the defence of duress because they cannot be considered
    as morally involuntary.

[95]

Noureddine
    did not testify.  An accuseds failure to testify does not foreclose a duress
    defence although, practically speaking, it will have a negative effect on the
    availability of the defence in most cases.  I find nothing in the evidence to
    support the contention that a reasonable person in Noureddines situation, with
    Noureddines characteristics and experience, could not have declined further
    participation in the attack and left the Yard at some time prior to Mr.
    Pellicciones death.

[96]

On
    the evidence, Noureddine was fully involved from the outset in the beating
    administered to Mr. Pelliccione at various places in the Yard.  When asked by
    the court to refer to the evidence said to support the absence of any safe
    avenue of escape, counsel referred to two answers given by the witness Smith, during
    examination-in-chief.  Both answers related to events that occurred after Mr.
    Pelliccione, who had been badly beaten by Noureddine and others, had been taken
    into one of the trailers.  It would appear that the final fatal blows were administered
    in the trailer.

[97]

In
    the first of the two answers, Smith testifies as to his thoughts and,
    specifically, his belief that Sheridan could pop out of anywhere and just
    shoot anyone of us at any time. Whatever value Smiths evidence about his
    thoughts may have had on the objective component of the safe avenue of escape
    requirement, it provides no evidence as to what Noureddine thought or how he
    perceived the situation at the relevant time.

[98]

In
    the second answer referred to by counsel, Smith indicates to Dunsford and
    Sterling that they should return to the trailer because Sheridan is probably
    gonna kill youz.  It is unclear whether Noureddine even heard this comment.
    More importantly, there is no evidence as to what effect, if any, it had on
    Noureddines decision to remain and continue his participation in the ongoing
    attack of Mr. Pelliccione.

[99]

The
    two answers given by Smith, stretched to their fullest probative value from the
    defence point of view, go no further than to indicate that when Mr. Pelliccione
    was being held in the trailer, Smith was concerned that Sheridan might kill one
    or more of the persons in his entourage if they did not do as instructed by
    Sheridan.  The evidence does not speak to the absence of any safe avenue of
    escape for Noureddine.  Indeed, on Smiths evidence, Sheridan left Noureddine,
    Dunsford and Sterling with Mr. Pelliccione in the trailer in the moments
    immediately preceding the fatal blows.

[100]

The absence of
    any realistic basis upon which the jury could have a doubt as to whether Mr.
    Noureddine had a safe avenue of escape is enough to conclude that the defence
    should not have been left.  I make no comment on whether there was any air of
    reality to the other elements of the duress defence.

(ii)

The jury question

[101]

In his closing
    argument, Crown counsel referred, at some length, to the evidence of Dunsford,
    Smith and Sterling.  Using a chart as an aid to his argument, counsel attempted
    to demonstrate the many consistencies among the evidence of the three
    accomplices.  In his closing argument, counsel for Noureddine, using the same chart,
    attempted to demonstrate the many material inconsistencies in the evidence of
    the three accomplices.

[102]

During the
    deliberations, the jury asked to:

[h]ear again the transcript of the Crowns review point by
    point of the evidence chart, and counsel for Noureddines comments on the
    evidence chart, or to see the evidence chart on the monitors again.

[103]

The jurys
    reference to the evidence chart was a reference to the chart Crown counsel
    had used as an aid in his closing address.

[104]

Crown counsel
    and counsel for Noureddine agreed that the jury was entitled to an answer to
    the question.  They also appeared to agree that the jury wanted to rehear the
    submissions of Crown counsel and counsel for Noureddine as they related to the evidence
    chart.  Counsel for Sheridan took the position that neither the evidence chart,
    nor any portions of the address of the Crown or counsel for Noureddine should
    be provided to the jury in response to the questions.

[105]

The trial judge
    held that counsel for Sheridans position effectively foreclosed giving the
    jury any assistance in recalling the arguments of Crown counsel and counsel for
    Noureddine.  He told the jury:

You have requested the Crowns evidence chart and Mr.
    Noureddines comments on the evidence chart.  This relates to matters that do
    not constitute evidence at trial, but only commented upon during the jury
    addresses.  So that I could comply with your request, if all counsel were to
    accede to it.  Unfortunately not all counsel were agreed.  Thank you.

[106]

The trial
    judges answer to the jurys question was wrong in law and potentially
    prejudicial to Noureddine.  There is no legal principle that unless all counsel
    agree, the jury cannot be provided with assistance in recalling the arguments
    advanced by counsel.  The trial judges response to the question suggests a
    fundamental difference between assisting the jury in recalling evidence and
    assisting the jury in recalling arguments about the evidence.  The distinction
    is untenable and unfounded in the case law.  The jurys question about
    counsels submissions required an answer that was responsive to the question
    and fair to all parties.

[107]

The jurys
    question indicates that the jury wanted to hear the substance of Crown counsel
    and counsel for Noureddines closing arguments as they related to the evidence
    chart used by the Crown during its closing.  The jury was entitled to receive
    that assistance.  The exact form in which the assistance should be delivered
    required careful attention to the interests of both appellants and the Crown.
    For example, it would arguably be unfair to give the evidence chart to the
    jury as that would be tantamount to providing the jury with a written summary
    of one sides argument of the case. The exact format of the answer to the
    question would depend significantly on the submissions made by counsel.

[108]

Although the jurys
    question did not refer to counsel for Sheridans submissions, Sheridan had a
    legitimate interest in the response to be given to the question.  While the trial
    judge was wrong in holding that Sheridan could effectively veto any answer to
    the jurys question, Sheridan was entitled to an answer that protected his
    interests.  That answer may have required reference to Sheridans position as
    it related to the evidence described in the evidence chart.

[109]

The trial judge
    was required to answer the jurys question.  Counsel for Sheridans position
    did not relieve him of that responsibility.  The trial judge erred in failing
    to provide the jury with the assistance it requested.

[110]

The potential
    prejudice to Noureddine flowing from the trial judges failure to answer the
    jurys question is twofold.  First, the jury wanted a summary of Noureddines
    position as it related to the accomplices evidence.  His attack on that
    evidence was central to his defence.  The failure to provide that summary for
    the jury may well have diminished the force of the arguments advanced on behalf
    of Noureddine.

[111]

Second, Noureddine
    was prejudiced by the trial judges statement to the jury that at least one
    counsel had effectively blocked the trial judge from answering the jurys
    question.  I think the jury, upon hearing that at least one counsel did not
    want the question answered, could reasonably have concluded that it could not have
    been the Crown who did not want the Crowns evidence chart provided to the
    jury.  The jury could equally have concluded that counsel for Sheridan had no
    interest in the answer to the question.  If the jury followed that path,
    counsel for Noureddine would be viewed, wrongly, as responsible for preventing
    the jury from receiving an answer to their question.  Noureddine would
    certainly be prejudiced if the jury saw his lawyer as the roadblock to the
    information it had requested.

V

conclusion

[112]

I would allow
    the appeal, quash the convictions for second degree murder and order a new
    trial on the charge of second degree murder.

RELEASED: DD  NOV 12 2015

Doherty J.A.

I agree John Laskin
    J.A.

I agree P. Lauwers
    J.A.

[1]
In the transcript (Vol. 1, p. 553, l. 30), counsel for Noureddine is said to
    have asked for the exclusion of sworn jurors.  It seems that counsel
    misspoke, or there is an error in the transcript and the word sworn should be
    unsworn.  Counsel for Noureddine made it clear that Noureddine wanted to use
    rotating triers.  When rotating triers are used, sworn jurors cannot be
    excluded from the entirety of the challenge for cause process since sworn
    jurors act as the triers of the challenge until replaced by another sworn
    juror.

[2]
The nature and scope of any power the trial judge may have, apart from an order
    under s. 640(2.1), to exclude some or all jurors during the challenge for cause
    process is a matter of controversy in the Ontario Superior Court.  That issue
    is not before this court on this appeal:  see
R. v. Jasar
, 2014 ONSC
    7528 , [2014] O.J. No. 6431, at paras. 35-42;
R. v. Riley
, [2009] O.J.
    No. 1851, at para. 18;
R. v. Sandham
, [2009] O.J. No. 1853, at paras.
    55-56;
R. v. White
, [2009] O.J. 3348, at paras. 32-37.

[3]
The language of relative and absolute nullity seems to be borrowed from the
    civil law of Quebec: see
Civil Code of Quebec
, Article 1416-1422.


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. R.O., 2015 ONCA 814

DATE: 20151125

DOCKET: C57676

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.O.

Appellant

Erika Chozik, for the appellant

Lucy Cecchetto, for the respondent

Heard: May 7, 2015

On appeal from the conviction entered by Justice Linda Walters
    of the Superior Court of Justice, sitting with a jury, on August 7, 2013, and from
    the sentence imposed on September 26, 2013.

Tulloch J.A.:

FACTS

[1]

The appellant appeals against his conviction on one count of sexual
    assault and one count of sexual interference, following a six-day trial by a
    judge and jury. He also appeals his sentence of seven years incarceration.

[2]

The charges arise from allegations by the complainant of a prolonged
    period of sexual abuse that occurred between May 2002 and October 2008, when
    she was 7 to 13 years of age. The complainant was the stepdaughter of the
    accused. The abuse began with touching over the complainants clothing and
    escalated to intercourse and oral sex.

[3]

After the appellant and the complainants mother separated in 2006, the
    complainant moved between their homes. In 2007, the complainants brothers were
    both living with the appellant when the complainant asked to join them. By the
    fall of 2007, all four of the appellants children and stepchildren were living
    with him. They lived together until October 2008.

[4]

At trial, the complainant testified that after the appellant and her
    mother separated, the appellant would supply drugs and alcohol to her, her
    older brother, and her step-sister. She was allowed to do whatever she wanted,
    which included skipping school, drinking alcohol, and smoking drugs. The
    complainant was described as defiant and out of control by her mother and the
    appellant.

[5]

The complainants evidence was to some degree corroborated by her
    brother, who testified that the appellant supplied him and the complainant with
    drugs and alcohol, and that the complainant would routinely sleep in the
    appellants bed. The complainants brother also described that, on at least one
    occasion, he observed what he determined to be inappropriate sexual behaviour
    between the two.

[6]

Eventually, the complainant disclosed the sexual assaults to her mother
    and a report was made to the police. On November 4, 2008, police seized a used
    condom from the appellants bedroom in his home. The appellants semen and the
    complainants DNA were present on the condom.

[7]

The appellant raises four grounds of appeal:

1)

The trial was rendered unfair due to the admission of evidence of
    discreditable conduct. The limiting caution given in relation to this evidence
    was insufficient to cure the prejudice caused.

2)

The trial judge erred by allowing the Crown to invite the jury, in the
    absence of expert evidence, to infer that the complainants allegations of
    abuse were corroborated by her behaviour.

3)

The exhortation given by the judge to the jury was improper.

4)

The sentence of seven years is excessive due to the trial judges
    failure to appropriately take into consideration the five years he spent on
    strict bail conditions.

ANALYSIS

(1)

Was the trial rendered unfair due to the admission of evidence of
    discreditable conduct? Was the limiting instruction given in relation to this
    evidence sufficient to cure any resulting prejudice?

Positions of the Parties

[8]

The appellant submits that the jury heard a significant amount of
    evidence about his bad character. This included irrelevant details about his
    relationship with the complainants mother, that he had a 19-year old
    girlfriend, kept his house in a poor state, neglected his youngest child, sold
    drugs, and was alleged to have assaulted his sister when they were young. The
    appellant argues on appeal that his character and lifestyle were clearly put on
    trial. This was not relevant to the sole issue at trial  whether he had
    committed the sexual abuse alleged by the complainant. The admission of this
    evidence was improper and rendered the trial unfair.

[9]

The appellant further submits that the risk associated with evidence of
    disreputable conduct is so great that the jury might have misused the evidence
    and convicted the accused unfairly even if given proper instructions. In this
    case, the caution by the trial judge was insufficient.

[10]

The
    Crowns position is that the evidence of drug and alcohol use and the living
    conditions at the appellants home were necessary and relevant to establish the
    nature of the relationship between the appellant and the complainant, explain
    why she did not complain, and explain why she wanted to continue to live with
    the appellant, despite the abuse. This evidence was also relevant to the
    appellants attack on her credibility. The state of the house was relevant to
    the circumstances in which the condom was found.

[11]

The
    Crown submits that the bad character evidence went in as part of a strategic
    decision by defence counsel. In fact, it was the appellant who caused it to be
    introduced. His strategy was to depict the complainant as out of control,
    addicted to drugs and alcohol supplied by others, and as a person who made
    false allegations against people. No issue about the competence of trial counsel
    has been raised. Finally, the jury instruction on the evidence was adequate and
    approved by defence counsel.

Discussion

[12]

I
    would first note that the admissibility of the evidence of discreditable
    conduct was not raised at trial. The trial judge was not asked to rule on the
    admissibility of any of this evidence, as there were no objections by counsel.

[13]

The
    failure to object to the admissibility of evidence at trial is not fatal to an
    appeal. However, it is more difficult for this court to undertake the required
    analysis based on a record where the defence chose not to litigate the
    admissibility of the evidence at trial. In
R. v. Bero
(2000), 137
    O.A.C. 336, Doherty J.A. commented, at para. 12:

Absent any suggestion of ineffective representation at trial,
    or some other adequate explanation for the absence of any objection to
    admissibility at trial, I would not give effect to an argument that comes down
    to the contention that an accused should receive a new trial on the ground that
    had he chosen to challenge the admissibility of evidence at trial he might have
    been successful.

[14]

Not
    only were there no objections to this evidence, the defence introduced and amplified
    much of it as part of its strategy to emphasize the bad character of the
    complainant and diminish the credibility of the complainant, her mother, and
    her brother.

The Evidence of Discreditable Conduct

[15]

Character
    evidence showing only that the accused is the type of person likely to have
    committed the offence in question is generally inadmissible. However, evidence
    of relevant discreditable conduct may be admitted for a variety of legitimate
    purposes, including providing narrative or context: see
R. v. G. (S.G.
),
    [1997] 2 S.C.R. 716.

[16]

The
    ultimate issue at trial was whether the appellant had committed the sexual
    abuse alleged by the complainant. Information about the family dynamic and the
    relationship between the complainant and the appellant was necessary for the
    narrative. The credibility of the complainant and the manner in which the
    appellant allegedly carried out the offences were also relevant to the main
    issue. Character evidence has been held to be admissible for these and similar purposes:
    see, for example,
R. v. F
.
(D.S.)
(1999), 43 O.R. (3d) 609
    (C.A.), at p. 616;
R. v. C.B.
, 2008 ONCA 486, 237 O.A.C. 387, at para.
    30. In this case, the impugned evidence was relevant and admissible.

[17]

During
    oral arguments, the appellant conceded the relevance of the evidence of drug
    and alcohol use and the evidence that he was supplying drugs and alcohol to his
    children and stepchildren. I agree that this evidence was pertinent to the
    nature of the relationship between the appellant and the complaint.

[18]

This
    evidence was also relevant to the evaluation of the complainants credibility.
    The theory of the defence was that the complainant made up allegations and
    fabricated evidence so that she could live with her mother in a beautiful, new
    home. This theory required the defence to attack the complainants credibility
    and character. She was accused of lying and being out of control. Evidence
    about the freedom the complainant enjoyed while living at the appellants home,
    the drug and alcohol use, and the supply of these substances was relevant. It
    went to the determination of the complainants credibility and to understanding
    the context in which the abuse occurred. It also helped explain why she did not
    complain about the abuse when she was living with him and why she continued to
    want to live with him. These two questions were central to the defences
    theory.

[19]

The
    testimony about the family breakdown, the appellants girlfriend, and the state
    of the living conditions, were part of the context of who was living where and
    why. The living arrangements at the time of the abuse, and why the complainant
    continued to live with the appellant, were issues at trial. The credibility of
    the complainants evidence that she wanted to live with the appellant because
    there were no rules was borne out in the testimony about the state of the
    appellants home.

[20]

Evidence
    about the appellants home provided the backdrop to the information that the complainant
    would often sleep in the appellants bedroom. The state of the house was
    connected to the partying and freedom that the complainant sought and enjoyed
    at the appellants place. Evidence about the home also helped explain the
    finding of the condom.

[21]

The
    two pieces of evidence that the appellant now argues were most prejudicial were
    introduced by the complainant during her cross-examination by the defence.

[22]

The
    complainants assertion that the appellant was selling drugs was made in
    response to counsels suggestion that the appellant was providing for his
    family and would not have had money to supply the complainant with drugs.

[23]

Defence
    counsel also elicited details of a conversation between the complainant and the
    appellants sister, in which it was mentioned that the appellant had raped his
    sister when they were young. The Crown elicited from the complainant that she
    had spoken to the appellants sister about the abuse. Defence counsel asked for
    details of the conversation in an attempt to impugn the complainants
    credibility. It was at this point that the comment about the assault on the
    appellants sister was made. This line of questioning by the defence also
    confirmed that the complainant and the appellants sister were heavily under
    the influence when the conversation occurred.

[24]

In
    addition to being relevant to issues at trial, the probative value of evidence of
    discreditable conduct must exceed its prejudicial effect:
G. (S.G.)
,
    at para. 65;
F
.
(D.S.)
,

at p. 617.

[25]

As
    discussed, the lifestyle evidence was relevant and material. It was critical to
    the narrative of the relationship between the complainant and the appellant,
    went to the credibility and mental state of the complainant, and was part of
    the manner in which the appellant continued to carry out the offences. These
    were significant issues at trial, in particular because the defence theory was
    that the complainant had fabricated the allegations and possibly the evidence
    of the condom.

[26]

The
    prejudicial effect of evidence of extrinsic misconduct can impact a jury in
    three ways: i) the jury may assume, from its acceptance of the evidence of
    extrinsic misconduct, that an accused is a "bad person", thus likely
    to be guilty of the offences charged; ii) the jury may tend to punish the
    accused for the extrinsic misconduct by finding him or her guilty of the
    offences charged; and iii) the jury may become confused by the evidence of
    extrinsic misconduct, their attention deflected from the main purpose of the
    trial, the offences charged, and substitute their conclusion on the extrinsic
    misconduct for their verdict on the indictment they are trying:
R. v. J.A.T.
,
    2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 52.

[27]

In
    this case, the primary concern is that the jury may have misused the bad
    character evidence by inferring guilt based on the character or disposition of the
    accused.

[28]

In
    my view, the most prejudicial evidence was about the drug use in the house and
    the appellants provision of drugs to members of his family. It was conceded
    that this was relevant to the narrative at trial, and in my view, the jury
    would not have improperly used this evidence to infer that the appellant was
    also guilty of sexually assaulting his stepdaughter when she was 7 to 13 years
    old. Though there was significant evidence about drugs and alcohol, I do not
    think the jury would have been distracted or overwhelmed by it.

[29]

Other
    issues, like the state of the appellants home and his finances, were not at
    all related to the appellants propensity to commit a sexual offence on a
    minor. Any prejudice that might have resulted was not significant. The same can
    be said about the alleged neglect of the appellants son on one day in October
    2008, which provided important context for the discovery of the abuse by the
    complainants mother. This evidence did not distract from the real issues at
    trial.

[30]

The
    evidence that the appellant had, at one time, a 19-year old girlfriend, was
    part of the context of the appellants move to Windsor. Though her age was not particularly
    relevant, I do not think it would have led to propensity reasoning. There is a
    significant difference between the sexual abuse of a family member aged 7 to 13
    and a legal relationship with a 19-year old.

The Jury Instruction

[31]

The
    trial judge brought up the need for an instruction on the bad character
    evidence. Counsel had a copy of the proposed charge and neither objected.

[32]

The
    trial judge gave a clear limiting instruction on the purpose for which evidence
    of discreditable conduct could and could not be used. The evidence could be
    used as context or background to the events that unfolded, to resolve
    discrepancies between the witnesses regarding what did and did not occur, and
    to help in assessing the credibility of various witnesses.

[33]

She
    stated that to use this evidence to reason that the appellant was the type of
    individual who would commit sexual assault was forbidden reasoning. Nor could
    the evidence be used to provoke hostility or bias against the appellant, or to
    indicate that he is deserving of punishment. In essence, the trial judge
    specifically instructed on the prejudicial effects of the evidence discussed
    above and negated any risk of prejudice.

[34]

Finally,
    a specific instruction on the complainants testimony about the appellants
    sister would have highlighted the comment. In
R. v. Beausoleil
, 2011
    ONCA 471, 283 O.A.C. 44, this court held that a limiting instruction on bad
    character evidence is not necessary in every case: para. 20. One of the
    circumstances mentioned was the likelihood that such an instruction would
    unnecessarily draw attention to the discreditable conduct. In my view, this consideration
    applies to the hearsay evidence about the appellants sister.

[35]

In
    all of the circumstances, the evidence of discreditable conduct was admissible
    and the limiting instruction was appropriate.

(2)

Did the trial judge err by allowing the Crown to invite the jury, in the
    absence of expert evidence, to infer that the complainants allegations of
    abuse were corroborated by her behaviour?

Positions of the Parties

[36]

The
    appellant submits that Crown counsel improperly invited the jury to infer that
    the appellants out of control behaviour could confirm her claim of sexual
    abuse by the appellant, and that the escalation of her bad behaviour corresponded
    to an escalation in the sexual abuse. There is no basis on which to draw an
    inference that certain behaviours were linked to sexual abuse. In the absence
    of expert testimony, there is an even greater danger that the jury might be
    left with the impression that there is a scientific basis on which to conclude
    that these behaviours make a complainants testimony more credible. Further,
    there was no instruction to the jury on the distinction between legitimate
    inference and speculation on this point. The trial judge also did not emphasize
    for the jury the other possible explanations for the complainants behaviour
    advanced by the defence.

[37]

The
    Crown submits that it was entitled to invite the jury to find that the
    complainants behavioural problems were related to the abuse and the threats
    made by the appellant to silence her. This was an appropriate argument, and not
    one that needed expert evidence.

Discussion

[38]

The
    theory of the defence was that the complainant made up allegations and
    fabricated evidence so that she could live with her mother in a new home. The
    defence strategy was to diminish the complainants credibility as much as
    possible. Understandably, highlighting her bad behaviour was part of that
    strategy.

[39]

The
    Crown was entitled to respond by arguing that the complainants problems were
    consistent with the timing of the abuse. The Crown provided a theory as to why
    she was acting out. In its closing address and again in the judges summary of
    the Crowns position, it was suggested that the complainants worsening
    behaviour was consistent with the impact that abuse would have on her. This
    theory competed with the theories put forward by the defence that the
    complainant was wild perhaps because of her parents separation, or because her
    father did not play a role in her life, or because she was associating with
    other troubled kids and had access to drugs and alcohol.

[40]

I
    disagree with the defence submission that the Crown argued for a scientific
    link or inference between the complainants behaviour and the existence of
    abuse. The Crown did not argue that the complainants behaviour confirmed the
    abuse. There was very little evidence led on this point. The Crown questioned
    the complainant about her bad behaviour, including skipping school and
    drinking, as well as the timeline of the alleged abuse. The Crown then put to
    the appellant that the complainants problems at school increased as the sexual
    abuse escalated, which the appellant denied.

[41]

No
    expert evidence was proposed on this point at trial. Expert evidence on the
    behaviour of child sexual assault victims, sometimes known as Child Sexual
    Abuse Accommodation Syndrome and popular in the 1990s, has been found to be
    inadmissible:
R. v. K. (A.)
(1999), 45 O.R. (3d) 641 (C.A.). In the
    circumstances of this case, expert evidence on the behaviour of the complainant
    and its potential causes would lend the evidence unwarranted significance. In
R.
    v. Olscamp
(1994), 95 C.C.C. (3d) 466 (Ont. C.J. (Gen. Div.)), Charron J. (as
    she then was) described this danger. She held, at p. 475, that [t]he admission
    of evidence dressed up in scientific language in support of the complainants
    testimony may well be given far more weight by the jury than it deserves and
    may even become determinative of the ultimate issue (citations omitted). An
    allegation of a scientific link between the complainants bad behaviour and
    escalating abuse by an expert would have led to enormous prejudice against the
    appellant.

[42]

Triers
    of fact are capable of relying on their common sense and experience to
    understand why a complainant may act in a certain way. The Court of Appeal of
    Alberta in
R. v. R.A.N.
, 2001 ABCA 68, 152 C.C.C. (3d) 464, at para.
    20, found this to be the case in the context of sexual offences and evidence of
    declining academic performance, running away, and rebelliousness.

[43]

The
    jury was able to consider the complainants rebelliousness and assess that
    there could be more than one cause for it. Bad behaviour may be related to the
    stress of abuse at home, or it may not be. It was open to the jury to assess
    this possible explanation for the complainants behaviour and weigh it
    accordingly.

[44]

I
    disagree with the appellant that the trial judge misled the jury into believing
    that this evidence was definitive on the issue of whether the complainant had
    been sexually abused. The trial judge simply summarized the position of the
    Crown. This included the assertion that bad behaviour was consistent with the
    impact of abuse, as well as other points related to the credibility of the
    complainant. The trial judge also provided the defence position that the
    complainant was abusing drugs and alcohol, lied in the past, and was not to be
    believed.

(3)

Was the instruction given by the judge in response to the jury question improper?

Positions of the Parties

[45]

After
    nearly a day of deliberations, the jury asked: What happens when we are 11 to
    1? The trial judge explained that a verdict means that all 12 of you must agree
    and that a verdict must be unanimous. The trial judge instructed them to
    continue to try to arrive at a unanimous verdict, and if that was not possible,
    to pass her a note.

[46]

The
    appellant submits that the trial judge erred in this exhortation to the jury by
    not telling them that they had a right to disagree. Improper pressure was
    placed on the one juror to simply change his or her mind, and no tools were
    given to the jury to help them resume their deliberations.

[47]

The
    Crown disagrees. The jury was not deadlocked and had only been deliberating for
    about four and a half hours. The trial judges response to their question was
    vetted by counsel and was adequate.

Discussion

[48]

The
    jury had been deliberating for only about five and a half hours, with a one
    hour lunch break, when they asked [w]hat happens when we are 11 to 1? I do
    not think it is fair to say that this question was indicative that the jury was
    deadlocked.

[49]

The
    judge explicitly stated that if it was not possible for the jurors to reach a
    unanimous verdict, they should pass her a note. Implicit in this instruction is
    that the jury might not reach a unanimous verdict  they might disagree. There
    was no objection to the re-charge.

[50]

The
    right to disagree was part of the initial charge to the jury. In her initial
    charge, the judge explained [t]here are times, however, when a jury is unable
    to reach a verdict. Jurors have the right to disagreeYou must not agree, however,
    only for the purpose of returning a unanimous verdict. The judge reiterated:
    Sometimes jurors cant agree. Under our law, jurors have the right to
    disagree. However, no jury will be in any better position or different position
    to decide this case than you are right now. She also explained the process of
    notifying the court if the jury was unable to reach a unanimous verdict.

[51]

Both
    parties rely on the guiding principles in
R. v. G. (R.M.)
, [1996] 3
    S.C.R. 362. In that case, the trial judge recalled the jury and urged them to
    consider the public expense of a new trial, the inconvenience that it would
    cause to all participants, the hardship to the accused and the complainant, and
    suggested that the minority might want to reconsider what the majority were saying.
    Only fifteen minutes later, the jury returned with a verdict of guilty. These
    pressures and factors are irrelevant to the duties of the jurors and were
    therefore held to be inappropriate in an exhortation.

[52]

That
    is not the case here. The language used in response to the jurys question did
    not place undue pressure on the jury or introduce irrelevant factors. It did
    not encourage jurors to simply change their minds for the sake of conformity.
    Instead, it encouraged the jurors to deliberate further to see if they would be
    able to reach a unanimous verdict, and explained the process  to pass a note
    to the judge  if indeed unanimity was not possible. It reiterated, in part,
    the proper instruction given to the jury before they began their deliberations.

[53]

The
    Supreme Court at para. 17 of
G. (R.M.),
citing
R. v. Sims
,
    [1992] 2 S.C.R. 858, explained that the goal of an exhortation is to assist the
    process of deliberation as opposed to influencing the content of the jurys
    discussion. I am not of the view that the judges instruction would have
    influenced the content of the jurys deliberations. In all, I do not believe
    the trial judge erred in her answer to the jurys question.

(4)

Is the sentence of seven years unfit? Did the judge err by failing to consider
    the five years that he spent on strict bail conditions?

Positions of the Parties

[54]

The
    appellant submits that the custodial sentence of seven years was unfit. The
    appellant spent five years on strict pre-trial release. He was initially under
    house arrest and a curfew. He was subject to weekly reporting, required to abstain
    from alcohol and drug use, and required to live with his surety. He was
    prohibited from having contact with his son. The appellants lengthy period
    under pre-sentence house arrest and other conditions was a relevant mitigating
    factor, as it demonstrated that he was on a path to rehabilitation. In light of
    this, the sentence was excessive.

[55]

The
    Crown submits that the trial judge considered all of the appropriate legal
    principles, including the time the appellant spent on judicial interim release,
    in imposing a sentence. The judge stated that, while not assigning a particular
    credit to the terms of bail, she had taken it into her global consideration of
    sentence. The seven-year sentence cannot be said to be demonstrably unfit in
    the circumstances of the offences.

Discussion

[56]

Appellate
    courts must show great deference in reviewing sentences, and may not vary a
    sentence simply because it would have imposed a different one. Courts are not
    to vary a sentence imposed by a trial judge absent an error in principle,
    failure to consider a relevant factor, an overemphasis of the appropriate
    factors, or the imposition of a sentence that is demonstrably unfit:
R. v. L.M.
,
    2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14;
R. v. M. (C.A.)
, [1996]
    1 S.C.R. 500, at para. 90.

[57]

The
    trial judge was fully alive to and gave cogent reasons on the matter of
    pre-trial release, noting that a lengthy period on bail is a mitigating factor.
    She mentioned that the appellant had spent five days in pre-trial custody and
    five years on bail with onerous conditions. She considered the disruption that
    the bail conditions had on the appellants relationship with one of his
    daughters, but also that there was no evidence that the appellant sought to
    vary any of the terms of his bail.

[58]

Though
    no specific credit was assigned for the appellants pre-trial bail, the judge
    explained that it was taken into account globally, and specified in her
    reasons for sentence that she had considered this pre-trial custody and pre-trial
    bail conditions as a mitigating factor. The judge fulfilled the approach to credit
    for pre-trial bail conditions outlined in
R. v. Downes
(2006), 79 O.R.
    (3d) 321 (C.A.), at para. 37.

[59]

Further,
    it is clear from the reasons that the trial judge also considered the
    appellants positive steps toward rehabilitation while on bail as a mitigating
    factor. She mentioned that the appellant was not currently abusing alcohol and
    drugs, was attending a methadone clinic and had tested negative for illegal
    substances since he began the program, and that he had abided by all of the
    conditions for five years without incident.

[60]

The
    trial judge appropriately considered and weighed all the relevant factors. In
    the case of an adult offender in a position of trust who sexually abused a
    child on a regular basis, the sentence of seven years imprisonment cannot be
    said to be demonstrably unfit: see, for example,
R. v. D.D
. (2002), 58
    O.R. (3d) 788 (C.A.), at para. 44;
R. v. P.M.
, 2012 ONCA 162, 282
    C.C.C. (3d) 450, at para. 46;
R. v. D.M
., 2012 ONCA 520, 111 O.R. (3d)
    721, at para. 44.

DISPOSITION

[61]

I
    would therefore dismiss the appeal and grant leave to appeal sentence but dismiss
    the sentence appeal.

Released: EEG  NOV 25, 2015

M. Tulloch J.A.

I agree. E.E.
    Gillese J.A.

"I agree. P.
    Lauwers J.A."