[27] The third reason for our decision is the most important. It concerns the closing address by the Crown.
[28] The first aspect of that address that causes concern is the highly emotive and inflammatory language used by the Crown. The appellant was described as a "predator", and the incidents as "terrifying", "horrifying to imagine", "horrifying events", "unspeakable" and "horrific sexual abuse". This kind of rhetoric has absolutely no place in the closing address of the Crown. Such an appeal to passion seeks to completely deflect the jury from their proper role, to dispassionately assess the evidence they have heard.
[29] After the Crown concluded, and to his credit, the trial judge in the absence of the jury severely chastised the Crown. The defence did not move for a mistrial. Nonetheless, the trial judge agonized during the lunch break over whether to order a mistrial on his own motion. He ultimately decided not to, feeling that he could undo the damage with his instructions to the jury. He concluded his charge with a very strong direction to the jury to pay no attention to these aspects of the Crown's address.
[30] If that were the only problem with the address we would not be quite so concerned. However, there is another particularly troubling aspect of the Crown's closing. It is the way the Crown addressed the issue of the complainants' motive for revealing their stories about what their uncle had done to them. The Crown told the jury that no reason for the girls fabricating these allegations emerged because there was no such reason since the girls were telling the truth. She said this:
However, it's not improper for me to ask you to reflect on the fact that no reason emerged as to why J.B. or K.B. would fabricate these horrible allegations. I would submit to you no apparent motive was revealed from their evidence or their admissions, because quite frankly there isn't one, the girls are telling the truth.
[31] The concern raised by these submissions is aptly captured by the words of this court in R. v. L.L. (2009), 244 C.C.C. (3d) 149 (Ont. C.A.), at para. 42:
The difficulty with these comments is twofold. First, they appear to suggest that the Crown proved lack of motive to fabricate when the evidence was not capable of supporting such a finding. Second, by asking highly emotive rhetorical questions concerning why the complainant would create various negative consequences for herself, the Crown created a risk that the jury would jump to a conclusion that the complainant must be telling the truth if there was no demonstrated motive to lie.
[32] The court went on at para. 53 to outline the minimum corrective instruction that should be given in such circumstances:
At a minimum, the corrective instructions should have addressed the following matters:
· Because a person's motives can sometimes be hidden, there is a difference between absence of apparent motive and proven absence of motive;
· Although the defence had raised some possible motives for the complainant to fabricate her evidence, depending on their view of the evidence, it was open to the jury to find an absence of any apparent motive on the part of the complainant to fabricate;
· Although absence of apparent motive to fabricate is a proper factor to consider in assessing the credibility of the complainant, it is but one of many factors to be considered; and
· Whatever their view of the evidence relating to the complainant's motive to fabricate, it was essential that the jury bear in mind that the accused has no obligation to prove a motive to fabricate and that the onus remains on the Crown throughout to prove guilt beyond a reasonable doubt.
[33] The trial judge did not have the benefit of this court's judgment in R. v. L.L. and no such instruction was given.
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