R. v. Lalande

R. v. Lalande Collection Decisions of the Court of Appeal Date 1999-09-07 Docket numbers C29619 Judges Krever, Horace; Borins, Stephen; O’Connor, Dennis Subject Criminal Decision Content DATE: 19990907 DOCKET: C29619 COURT OF APPEAL FOR ONTARIO KREVER, BORINS AND O'CONNOR JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Gregory Lafontaine ) for the appellant (Respondent)) ) and ) ) ANDRE LALANDE ) Phil Downes ) for the respondent (Appellant)) ) Heard: July 27, 1999 ) On appeal from the conviction of Cusson J., sitting with a jury, dated September 11, 1997 and on appeal from the sentence dated December 10, 1997. BORINS J.A.: [1] This is an appeal by Andre Lalande from his conviction by a jury presided over by Cusson J. on six counts in an indictment charging the commission of sexual offences, the victim of which was a young woman who was his part-time employee. Further, the appellant seeks leave to appeal his sentence of 30 months and, if leave is granted, appeals against the sentence. [2] The appellant raised the following six grounds of appeal from his conviction: (1) Errors in the jury charge on reasonable doubt. (2) Errors in the trial judge’s review of the evidence. (3) The manner in which the trial judge responded to the jury’s request, in the course of its deliberations, to have the victim’s evidence read back. (4) The Crown’s cross-examination of the appellant and his closing address to the jury infringed the appellant’s right to remain silent and were not the subject of an appropriate admonition by the trial judge in his instructions to the jury. (5) Inappropriate comments in the Crown’s closing address to the jury. (6) The trial judge’s refusal to allow the appellant to sit beside his counsel throughout the trial, instead of in the prisoner’s dock. [3] As there was no merit in the first, second and fifth grounds of appeal, we did not call on counsel for the Crown to respond to them. However, I would give effect to the third and fourth grounds and order that there be a new trial. Although the sixth ground of appeal raises an important question, I am of the view that standing alone, it would not require that there be a new trial were I to be of the opinion that the trial judge erred in exercising his discretion as to where the appellant should be seated throughout his trial. [4] As there is to be a new trial, I will not review the facts. It is unnecessary to do so for the purpose of considering the two grounds on which the appellant has demonstrated reversible error. ANALYSIS (i) The “read back” of the victim’s evidence [5] This trial was held in a region of the province where the testimony of witnesses is recorded by a tape recording device, monitored by a person referred to in these proceedings as a “court reporter”. This is known as an open-microphone system. When a jury, in the course of its deliberations, asks to hear the testimony of a witness, the monitor is required to playback the relevant portion, or portions, of the testimony using speakers which have been installed in the courtroom. [6] The open-microphone system of recording evidence is to be contrasted with the system that it replaced. Formerly, a court reporter using shorthand or stenotyping, or a similar method, took down the testimony of the witnesses. When a jury asked to hear the testimony of a witness, the court reporter read the relevant portion of his or her notes to the jury in open court in the presence of the trial judge, the defendant and counsel. [7] In this appeal, after the jury had deliberated for about 3 ½ hours, it sent the following question to the trial judge: “Could we get [the complainant’s] testimony of September the 8th, 1997?” On that date, the complainant had testified for almost the entire court day. The trial judge met with counsel in his chambers to discuss the jury’s request. The judge and counsel agreed that the response to the question would be as he indicated in the following passage from the transcript of the trial: -- if I had a transcription, if I had a document that’s transcribed I could just give you the document and that would be the end of it. I don’t have that. The only thing I can offer you is that if there are some portions of the testimony of [the complainant] that you would like to hear, we’ll have to play it back on the machine, on the recording machine. That is done this way. I would clear the courtroom, you would be here alone with the court reporter, you would indicate to her which portions of the testimony you wish to hear…. Tell here whereabouts you want to hear, what portions of her evidence you want to hear and she will play it back. So you can – if you wish to do that, certainly just let us know and we’ll arrange to have the courtroom cleared and you can ask the court reporter, Mrs. Proulx, to play back those portions that you have. I mean, if you wish you can sit and listen to whole thing if you want on tape but it will last the time that it lasts because as you know it’s not – it’s not shortened in any way. It’s there – all of it is there in its integrity [sic]. And we can’t just give you a tape. We only have one tape. We can’t just give you a tape because it has to be operated by the official court reporter so that we make sure we don’t get any erasures or miss – accidents with the tape itself. So, that’s the way we – the only way I can handle your second question is to tell you that, that evidence can be heard or re-heard by you, portions of it or all of it, directly from the recording machine. [8] Consequently, what occurred was that the courtroom was cleared of everybody except the monitor, Mrs. Proulx, and the jurors. Counsel for the parties agreed to admit as evidence on the appeal Mrs. Proulx’s recollection of what occurred. She recalled that from 4:00 p.m. to 4:19 p.m. she played for the jury the portions of the complainant’s testimony as requested by the jury. She was unable to recall the contents of those portions as she kept no notes, but was certain that it was not the entire testimony of the complainant. She left the courtroom at 4:19 p.m. Mrs. Proulx was of the view that her time alone with the jury formed a portion of the jury’s deliberations. [9] The jury resumed its deliberations at 4:19 p.m., after which it returned to the courtroom at 4:49 p.m. and delivered its verdict of guilty on each of the six counts. As they jury returned verdicts of guilty very shortly after re-hearing certain portions of the complainant’s testimony, it is reasonable to draw the inference that the testimony they heard had a decisive impact on their verdict. [10] It is common ground on the part of counsel, and I agree, that as the response to questions, or requests, from a jury is part of the trial, the response must occur in open court, in the presence of the trial judge, the defendant and counsel. [11] The manner adopted by the trial judge in response to the jury’s request to hear the complainant’s evidence made it impossible for him to perform the duty required of a trial judge when a jury asks to re-hear the testimony of a witness. This court recently reiterated the trial judge’s duty in R. v. D.(D.) (1998), 129 C.C.C. (3d) 506, where the trial judge permitted the jury to hear only the complainant’s examination-in-chief and rejected the request of counsel that the cross-examination be read back. In ordering a new trial, the court stated at p.511: It is well recognised that there is a duty on a trial judge to ensure that any evidence read back to the jury as a result of a jury question should be read back together with any other portions of the evidence that qualify or contextualize it. In Olbey v. The Queen (1979), 50 C.C.C. (2d) 257 (S.C.C.), McIntyre J., writing for a majority of the Supreme Court of Canada, stated at pp.272-3: Counsel for the appellant contended that the trial Judge was in error in allowing only part of the evidence of Dwyer to be read back. He contended that when part of a witness’s evidence is reread all the cross- examination or qualifying evidence should also be read so that the evidence will be put in its proper relation to the whole of the case and so that the evidence will not be isolated and given more emphasis and significance than it should have. I am in agreement with this proposition, as was Martin J.A., in the Court of Appeal [reported at (1977), 38 C.C.C. (2d) 390]. He said: “I accept, of course the proposition that where the jury requests that the evidence of a witness be read back, it is incumbent on the trial Judge not to allow the jury to hear a part only of the evidence of the witness without also hearing those portions of the evidence of the witness, whether given in-chief or in cross-examination, which weaken or qualify the part read, even though the jury indicates that it does not wish to hear any more of the witness’s evidence. Otherwise, the jury is not hearing the evidence of the witness, but only an incomplete, or even an inaccurate account of his or her testimony.” [Emphasis added.] It is also to be noted that the segregation of the monitor and the jury made it impossible for counsel, or the defendant, to assist the trial judge in the performance of his duty. [12] Although counsel for the respondent agreed that what occurred was clearly unsatisfactory, he submitted that this was an appropriate appeal in which to apply the proviso in s.686(1)(b)(iv) of the Code. It was counsel’s position that on a close analysis of what occurred, or may have occurred, during the playback of the complainant’s testimony, there was not, and could not have been, any prejudice to the appellant. [13] In my view, the respondent has not satisfied its onus of establishing that the manner in which the complainant’s testimony was played back to the jury resulted in no prejudice to the appellant. I appreciate that there may be instances where the absence of an accused from the playback of evidence for a jury, or from part of his or her trial, may not result in prejudice to him or her and enable the court to apply the proviso: R. v. Hennin, [1993] O.J. No. 1420 (C.A.); R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.). However, I am not satisfied that this is such a case. There was no record of what occurred during the playback. As a result, we do not know what testimony the jury heard, and if there was testimony that they should have heard that qualified or contextualized it. The procedure adopted by the trial judge in response to the jury’s request to hear the complainant’s testimony had the potential to be highly prejudicial to the appellant and, without a record of what took place during the playback, I am of the opinion that effect must be given to this ground of appeal. [14] Counsel for the Crown advised the court that the procedure adopted by Cusson J. to playback the testimony is commonly used in those regions of the province where the open-microphone system is used to record trial proceedings. As I have indicated, the procedure he followed was clearly unsatisfactory. In the future, to avoid the unfortunate consequences of what occurred in this appeal, measures must be taken to ensure that tape recorded testimony is replayed for a jury in open court, in the presence of the defendant, the trial judge and counsel, and that a proper record is made of what takes place throughout the playback proceedings. (ii) The infringement of the appellant’s right to silence [15] When the Crown Attorney cross-examined the appellant, he questioned him with respect to his failure to previously explain his conduct. Although defence counsel did not object to this question, she attempted to mitigate its effect in re-examination by eliciting from the appellant that, on his arrest, his lawyer instructed him not to say anything to the police. In his closing argument, the Crown Attorney revisited this issue and attempted to justify the question on the ground that the appellant had said he had been cooperative with the police. He then told the jury: “You have to keep in mind that an accused person does not have to explain – does not have to provide a statement to the police.” However, the Crown Attorney did not tell the jury that it was not to draw an adverse inference from the appellant’s exercise of his right to silence. The trial judge did not deal with this issue in his instructions to the jury. [16] Counsel for the respondent, in my view, has quite properly conceded that the question should not have been asked, and, having been asked, required the trial judge to admonish the jury in the clearest of terms that the fact that the accused had remained silent did not lend itself to any adverse inference and could not be used as an inference against him as a step on the way to the proof of his guilt: R. v. Robertson (1975), 21 C.C.C. (2d) 385 (Ont. C.A.). [17] Without any direction from the trial judge to ignore these questions and answers, it is impossible to say that the verdict would necessarily have been the same. Accordingly, I would give effect to this ground of appeal. (iii) The prisoner’s dock [18] Although it is not strictly necessary to decide this question in view of my conclusion in respect to the previous grounds of appeal, counsel invited the court to comment upon the trial judge’s refusal of defence counsel’s request that the appellant, who was on bail, be permitted to sit beside her at the counsel table, rather than in the prisoner’s dock. As I stated earlier, even if I were to be of the view that in requiring the appellant to sit in the prisoner’s dock the trial judge abused his discretion, this is not a basis on which a new trial should be ordered. [19] Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security: R. v. Levogiannis (1993), 85 C.C.C. (3d) 327 (S.C.C.). I am aware that Commissioner Kaufman has made recommendations concerning where an accused person may sit during his or her trial: Report of the Commission on Proceedings Involving Guy Paul Morin, 1998, Vol. 2, 1167-68. Counsel for the respondent informed the court that in light of Commissioner Kaufman’s recommendations, the Ministry of the Attorney General has adopted the policy with respect to accused persons who are not in custody and who present no security concerns, that while the ultimate decision rests with the presiding judge, the Crown should normally consent to the accused person being permitted to sit at the counsel table should he or she request to do so. [20] In light of the foregoing, there is no need to comment on whether the trial judge erred in the exercise of his discretion. CONCLUSION [21] In the result, the appeal from conviction is allowed, the convictions are set aside and it is ordered that there be a new trial. “S. Borins J.A.” “I agree. H. Krever J.A.” “I agree. Dennis O’Connor J.A.” Released: September 7, 1999