Judge failed to instruct jury not to rely on impermissible reasoning suggested by Crown
The Ontario Court of Appeal ordered a new trial in a sexual assault case because the trial judge failed to provide a corrective instruction after the Crown’s closing argument contained an invitation for the jury to engage in impermissible reasoning.
In R. v. Clyde, 2024 ONCA 113, the appellant appealed his conviction of one count each of sexual assault and sexual interference. The appellant argued the Crown improperly relied on the appellant’s good relationship with the complainant and used the absence of evidence that the complainant had a motive to fabricate to bolster the complainant’s credibility.
By failing to instruct the jury that the complainant could have had a good relationship with the appellant and still misremembered the incidents and that the absence of evidence of a motive to fabricate was not evidence of an absence of a motive to fabricate, the trial judge compromised the appellant’s right to a fair trial, said the Court of Appeal. The court set aside the convictions and ordered a new trial.
The decision provides clear guidance on a point that arises in many cases: that the absence of a motive to fabricate does not impact the reliability of historical memories, says Mark Halfyard, who represented the appellant.
“It's an area that's quite prone to being misused by juries,” he says.
The complainant said that on two occasions, around 8-10 years before the trial, the appellant entered her bedroom and massaged her breasts and vagina.
The appellant and the complainant’s mother were in a long-term relationship from 2007 to 2014. When the complainant was a young child – she was 17 during the trial – she had rashes on her bum and thighs. Her mother or the appellant applied cream to the rashes before bedtime. Both the complainant’s mother and the appellant testified that they applied cream to the complainant’s vagina.
The appellant said he never touched the complainant for a sexual purpose. Focusing on the reliability of the complainant’s evidence rather than her credibility, the appellant’s defence was that she misremembered his involvement in her cream application.
The complainant viewed the appellant as a father figure, and they had a positive relationship. In the Crown’s closing statement, he said that given the appellant’s role in her life, the complainant would have never gone through the ordeal of a criminal prosecution if she had “the slightest doubt” about the incident. He said the complainant could not have misremembered the events, and the “only logical conclusion” was that the appellant was lying.
The court said there is no logical connection between the absence of a witness’s motive to fabricate and that witness’s reliability. But the Crown’s closing statement had invited the jury to make that link, including by calling it the “only logical conclusion.” The court said that a corrective instruction was required to tell the jury this line of reasoning was impermissible.
