R. v. VANEINDHOVEN, 2013 NUCJ 24

Citation: R. v. VANEINDHOVEN, 2013 NUCJ 24 Date of Judgment (YMD): 20131015 File Number: 18-04-57 Registry: Iqaluit Respondent: HER MAJESTY THE QUEEN -and- Applicant: ADRIEN VANEINDHOVEN ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Crown Counsel: N. Devlin and J. Deschamps Defence Counsel: L. Stevens and T. Fairchild Location Heard: Iqaluit, Nunavut Date Heard: October 4, 2013 Matters: Rulings on mistrial application REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The parties finished calling evidence in the accused’s trial for second-degree murder on October 9, 2013. [ 2 ] At the close of the Crown’s address to the jury on October 10, Defence counsel gave notice that the accused would be considering a mistrial motion. She wished some time to consider the jurisprudence and I set the application down for the next morning. [ 3 ] Defence counsel reviewed the transcript of the Crown’s jury address and identified a number of improprieties that she argued jeopardized a fair trial for the accused.

These consisted of misstating evidence, the use of hyperbole, and the giving personal opinions. However, she stopped short of making a motion for a mistrial and submitted that the alleged improprieties by the Crown could be remedied by either a “clear and sharp admonition by the court” or by granting a right of reply.

She acknowledged that the remedy of reply was not supported by the actions of the Crown in this case. [ 4 ] Defence counsel also noted that the case law was clear that the prejudice from an improper address increases with time and therefore speed in correction is desirable because the impressions left become more settled with time and there is an immediacy required for its correction. [ 5 ] In reply the Crown prosecutor acknowledged that he had misstated some of the evidence and did use the first person pronoun a number of times. He requested the right to address the jury again to correct those misstatements.

As far as the use of hyperbole he argues that R v Boudreau, 2012 ONCA 830 , 104 WCB (2d) 862 , [Boudreau] , is authority that counsel for both parties are entitled to a fair degree of latitude in their closing addresses to the jury.

Finally, relying on R v Noel, [2000] OJ No 2740 , [2000] OTC 595 , [Noel] he argues that the use of the first person pronoun is permissible so long as it refers to suggestions or submissions relating to the trial evidence and not to convey his own personal opinions or beliefs that the jurors are invited to accept. [ 6 ] The Crown expressed great concern about the integrity of the trial and was prepared to agree to a reply by Defence counsel.

However, Defence counsel submitted that any unfairness had to be dealt from the bench and not from a reply. [ 7 ] The Crown agreed that the acknowledged misstatements of the evidence should be dealt with quickly and invited the court to address the jury on those points before adjourning for the weekend.

Defence counsel did not agree because there was disagreement over the extent of the misstatement and the Court had to review the addresses and the evidence and make that determination before deciding what to say to the jury. [ 8 ] My initial plan was to charge the jury on Friday morning, but I was not able to do because of the time consumed by the arguments over the jury addresses. While I considered charging on Friday afternoon I was unable to so because I had to consider the arguments and determine the appropriate changes to the charge. That could not be accomplished in the short time available.

I was also concerned about sequestering the jury late Friday afternoon before a long weekend because I thought it put undue pressure on them to arrive at a verdict. The net result is that the remedies for the misstatements of the evidence were not as timely as the case law suggests they should be but it was the best that could be accomplished under the circumstances. II. LAW [ 9 ] As the Ontario Court of Appeal in Boudreau at paragraph 16 noted there are important and well-settled limits of Crown advocacy. The Court stated: However, there are important and well-settled limits on Crown advocacy.

While the Crown may argue its case forcefully, it must abstain from inflammatory rhetoric, demeaning commentary and sarcasm. The Crown must not misstate the facts or the law. The Crown must not invite the jury to engage in speculation or express personal opinions about either the evidence or the veracity of a witness [ 10 ] In Boudreau the trial judge on his own initiative without any objection from defence counsel decided to deliver an addendum to his jury charge. He identified and explicitly discussed several statements by crown counsel that he felt fell into the ream of sarcasm and speculation.

He also explicitly instructed the jury that counsel’s opinion of witnesses was irrelevant.

[11] The Court of Appeal expressed its approval with this approach and noted that appeal courts have accepted a timely and focusedcorrection by a trial judge of deficiencies in a crown closing address. [12] Similar comments were made in R. v Rose, (SCC), [1998] S.C.J. No 81, 3 SCR 262. In that case the SupremeCourt of Canada agreed with the comments of Dubin J. in the court below that it is only in exceptional cases that defence counsel shouldgiven a right of reply. III.

ANALYSIS OF EVIDENCE AND OBJECTIONS [13] I will now review the objections raised by Defence counsel for the record. [14] At page 24 of the draft transcript Crown counsel stated: And when you go through all of the evidence at the end of the day, you will find, you will know that this was not an accident becausethat knife was never in her hand in the way it was described.

You will know that on that day in April of 2004, in a moment that he regretsterribly, that he regretted instantly, this man allowed his rage to get the better of him, and he struck this woman with that knife, and shedied. [15] Defence counsel argues that these are intemperate words because they are posed as statements of absolute fact instead of simplyurging the jury to arrive at a conclusion. [16] I agree that the Crown could have used words that were more tempered but I am satisfied that they fall within the latitude allowedfor a closing address. [17] At pages 24 and 25 of the draft transcript Crown counsel also stated: The first is the wound itself.

My friend points out that perhaps, in the absolute right and somewhat miraculous extremely rarecircumstance, someone could stab themselves that way, maybe, but what is the wound really? The wound is, as the doctor described it,exactly the wound that you would see if a person stabbed someone from in front of them or if they are both on top of one another. That isthe kind of wound that this is. The second fact here is that savage anger that he expressed to this young woman that morning.

You can't take this stab wound in thatrandom chance someplace on some lottery win kind of probability that this accident happened out of the context of what took place there,and the kind of anger this man had, and the way he expressed it towards this woman. [18] Crown counsel acknowledges that these were misstatements of the evidence because they give the impression that the chance of anaccidental stabbing occurring was a miraculous extremely rare circumstance and something like the odds of winning the lottery.

Dr.Bannach’s evidence at page 263 lines 2 to 25 clearly states that an injury similar to that suffered by the deceased was unlikely butpossible. [19] Similarly, Crown counsel acknowledges that his comments on Dr. Bannach’s description of an outlier were not accurate. Dr.Bannach used the word outlier in reference to survival time for a person who was stabbed in the heart. [20] Crown counsel also acknowledges that he misstated the evidence about the lack of experience of the officers who conducted theinterview. Cst. Fraser worked in the major crimes unit in Iqaluit.

Crown counsel was also incorrect in his statement concerning Cst.Lyons’s evidence about whether the accused was wearing boots when he arrived at the residence. The officer did testify that the accusedwas wearing boots when he arrived. He agreed in cross-examination that he did not look at his feet and he corrected himself.

[ 21 ] At page 28 of the draft transcript Crown counsel stated: I suggest to you that that is unthinkable, or very close to unthinkable, and in this case, you have not heard a single fact that makes that likely to have happened. And I don't mean that it's never likely that a woman who has violence done against her might not decide to lash out against the person who did the violence. I'm saying this woman in this case, for what happened there, right? There's no fact that can support that. And because of that, that knife never got in her hand. We don't need to talk about how likely it is that this was an accident.

It's that knife never gets into her hand in that context that day. It ends there. [ 22 ] Defence counsel argues that this is a statement of opinion by Crown counsel that is not supported by experience or the evidence and was improper. Crown Counsel argues that the improbability of the deceased doing what the accused said she did is founded in the abusive history of the relationship. The Crown did not call that evidence because of the ruling of the Court of Appeal.

However, he argues he did not discredit the general notion advanced by the accused that battered spouses might lash out and certainly did not disparage, discredit, or suggest that there was something inherently implausible about that happening. [ 23 ] The statement was prefaced as an argument because of the use of the words “I suggest to you” and I am satisfied that it came within the bounds of a jury address. [ 24 ] At page 30 of the draft transcript Crown counsel stated: I mean, seriously. You have just woken up, you've been drinking, he smoked marijuana.

In his own words, he was still groggy, but he stops that knife. That's a miracle. Not only does he stop the knife, but he stops the knife without drawing blood on his hands. Well, you know, that didn't happen. It just doesn't happen. [ 25 ] Defence counsel argues this is hyperbole that is unsupported by the evidence or experience. [ 26 ] I agree that, as worded, it could be construed as hyperbole. Crown counsel could have invited the jury to ask themselves how this accords with their common sense and experience.

However, I am satisfied that it can be corrected in my charge. [ 27 ] At page 32 of the draft transcript Crown counsel stated: And fact four, the letting go. Let's assume he passed those first three hurdles of improbability, and he's holding that knife there over his chest. There's no way that a small young woman leaning over him is going to be able to pull that back out of his unless he lets go. Why would he let it go?

She tried to kill him is his story. [ 28 ] Defence counsel argues that this statement is the opinion of counsel expressed in hyperbole and is not supported by the evidence. [ 29 ] I agree that this is an expression of opinion by counsel even though he did not use the personal pronoun “I”. However, he was clearly dealing with trial evidence and I am satisfied the statement comes within Noel. [ 30 ] At page 32 of the draft transcript Crown counsel stated: The DNA and the blood evidence in this case doesn't actually tell you exactly what happened in this room. There's no CSI moment. There's no camera in the corner.

But you heard the DNA analyst tell us that the scenario the Crown suspects happens in this case is consistent with the evidence.

[ 31 ] Defence counsel argues that this statement is inconsistent with the Crown’s opening statement and its perfectly consistent with the accused’s version. As result it should be corrected in the charge. [ 32 ] Crown counsel argues that he put a very specific scenario as its final question to the DNA examiner. It became the theory of what likely happened in this case. The examiner asked for the question to be repeated then she said yes. He argues that his statement was a direct retelling of the evidence exactly in the terms in which it was led.

If the defence wanted to make argument or ask the question of whether their version was also consistent that could have been done in the examination. That submission, if supported by the evidence, could have been made by the Defence but it is not up to the Crown to make that argument.

As a result the Crown submits that the statement was factually accurate and not lacking in objectivity. [ 33 ] I agree that there was nothing improper about this statement and will ensure that the jury is aware that the DNA evidence can be interpreted as being consistent with the Defence theory. [ 34 ] At page 35 of the draft transcript the Crown stated: We know he was in that state of tunnel vision that he talks about. We know that that anger was a problem for him. [ 35 ] Defence counsel argues that that statement is incorrect.

It was admitted that he was in a state of tunnel vision when he assaulted the evening before but not in the morning when she was stabbed. [ 36 ] Crown counsel argues that the Crown case is that the accused was in the state of tunnel vision at the time of the stabbing. It is an available inference directly from the language of the interview that was quoted to the jury. [ 37 ] I am satisfied that this statement was within the bounds of a jury address as representing the Crown’s

interpretation of the evidence. [ 38 ] At page 39 of the draft transcript the Crown stated: I mean, the happy couple where the woman suffers this injury, we're going to be suspicious as heck of the husband, right? Then we can have this trial, guilty, not guilty. [ 39 ] Defence counsel argues that this statement is a demonstration of contempt for the presumption of innocence.

It is not correct that the fact there was violence in the relationship before means that there is no triable issue here. [ 40 ] I am satisfied that that this comment was not improper when considered in the light of the remainder of the paragraph. Crown counsel stated that it is common sense to suspect the accused because he beat up the deceased earlier in the evening.

He went on to clearly state that he should be convicted because he stabbed her not because he beat her up. [ 41 ] At pages 39-40 of the transcript Crown counsel stated: But the truth slips out in little ways, and it slipped out in a number of small ways in this case. They start talking to him about the phone call with his brother, and they say, "Well, listen. You said some things to your brother about what happened." They don't say the words were, "I killed." They don't suggest it.

You And his first response is, "You guys have it recorded, right?" If he really said what he told you he said, which is, "They think I killed her,"why would he care? That's what -- that's his whole story. That's what he's been telling them for the last three hours on the tape. "You guys have it record right?" That's a worry. It's like, "Oh, damn. What did I say? Have they got that? I think the door was closed. Oh, drat. Was that phone recorded?"

[ 42 ] Defence counsel argues that when the statement is read in context the exact opposite is true. The accused was hoping it was recorded because he did tell his brother what happened as he testified to in court. [ 43 ] I am satisfied that this comment was within the bounds of a jury address as representing the Crown’s

interpretation of the evidence. [ 44 ] Defence counsel argued that the characterization of the statements overheard by Cst. Lyons and Ms. St. Germaine as being tantamount to a confession was an overstatement by the Crown. [ 45 ] I am satisfied that the Crown statement was within the bounds of a jury address as representing the Crown’s

interpretation of the evidence. [ 46 ] At pages 47 and 48 of the draft transcript Crown counsel stated: I also want you to consider in this trial that the Adrien you see is not -- is not a victim. He presents in this courtroom as a very meek, simply-spoken man. But if you listen carefully to his evidence and if you listen carefully to him on the tape, you can see he's an intelligent person. There are times when he chooses words and uses phrases that bespeak intelligence.

At one point, he didn't like a question I asked him yesterday, and his response was, "Well, what's that relevant to?" That's not -- that's not the response of a simpleton. He's not a simple man. He's not a learned man, but he's no dummy. [ 47 ] Defence counsel argues that this statement was sarcastic and follows up from Crown counsel’s cross-examination question in response to an answer of the accused, “what advanced training in martial arts do you have?” [ 48 ] Crown counsel argues that the comment was not prejudicial or unfair.

He was just saying he was a bright man. [ 49 ] I am satisfied that the Crown statement was within the bounds of a jury address. [ 50 ] At page 48 of the draft transcript Crown counsel stated: His Honour will explain to you that the Crown, in addition to having to prove that the knife was in Adrien's hand in this case, which I think the facts bear out overwhelmingly, has to satisfy you that he had the intention in his mind that makes this murder and just not just manslaughter, an inelegant name we have in law for what it's called when you kill someone, but you really didn't mean it, it's an accident; it was illegal, but it was an accident. [ 51 ] Defence counsel argues that this statement was improper because it contains Crown counsel’s personal opinion. [ 52 ] Crown counsel argues that this use of the personal pronoun “I” falls within the limits described in Noel. [ 53 ] I am satisfied that Crown counsel’s statement refers to suggestions or submissions relating to the trial evidence and not to convey his own personal opinions or beliefs and therefore fits within Noel. [ 54 ] At page 50 of the draft transcript Crown counsel stated: Rage is not a defence to Murder 2.

It is not a defence. And the fact that he loved this woman in some way -- that he actually loved her. He might well have thought of her as his soul mate. The fact that moments after the deed, and certainly in the hours and days after the

deed, he was in enormous pain about this, that's not actually inconsistent with him having done this, would venture that that is true for virtually every man who has killed the woman in their life in this country and around the world, because sadly, we know that that happens far too often. [ 55 ] Defence counsel argues that this statement was not true and there was no evidence to support it. [ 56 ] Crown counsel argues that the statement consists of argument. The defence argues that his grief is consistent with his innocence.

The Crown’s response is that the accused’s reaction does not in any way rule out that he caused the fatal injury. [ 57 ] I am satisfied that the Crown statement was within the bounds of a jury address as representing the Crown’s

interpretation of the evidence. [ 58 ] At page 51 of the draft transcript Crown counsel stated: You'll have to consider whether intoxication and the other circumstances might have reduced his ability to form that indent, and I think that's also a fairly easy answer in this case. [ 59 ] Defence counsel argues that the Crown’s statement is a personal opinion. [ 60 ] I am satisfied that it falls within Noel. [ 61 ] At page 54 of the draft transcript Crown counsel stated: At some point in the morning, there was a confrontation between them, and he got poked in the chest. You can see that, right?

We're not losing anything. There's no lost evidence there. We know he's poked in the chest, right? You're not losing anything by not testing that knife for his DNA. Something poked him in the chest. It could well have been that knife. It doesn't change anything. It could be another knife in the house. Who knows, right? Something poked him in the chest, but the knife ends up in Leanne.

And in this case, the evidence offers logical explanations for everything, but none of those explanations match with his. [ 62 ] Defence counsel argues that this statement is an expression of hyperbole and is improper. [ 63 ] I am satisfied that the Crown statement was within the bounds of a jury address as representing the Crown’s

interpretation of the evidence. IV. CONCLUSION [ 64 ] I am satisfied that the jury address of Crown counsel was not an inflammatory address. Crown counsel frankly acknowledged that he misstated some evidence. I am also satisfied that he did express some personal opinions. As a result, I am satisfied that this case is not one of those exceptional cases where the Defence should be given the right of reply. [ 65 ] I am also satisfied that the best way to address the acknowledged misstatement of some of the evidence of the Crown and the personal opinions is with appropriate comments in my charge.

Any additional addresses to the jury are bound to be confusing and may still not satisfy counsel. There has to be an end to the process and that end is in the charge. Both counsel will be given the opportunity to comment on my statements of the evidence in front of the jury before they retire and I will consider any revisions at that time. Counsel will also be given the opportunity to comment on the charge before the jury begins deliberations.

[ 66 ] In conclusion, I am satisfied that the accused will receive a fair trial if I address some of the problems created by the Crown’s address in my charge. Dated at the City of Iqaluit this 15th day of October, 2013. ____________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice