R. v. Mallory, 2007 ONCA 46
[336] The Crown’s role in the prosecution of criminal offences has long been recognized as quasi-ministerial. Success for the Crown is not measured in wins and losses. We repeat here the words of Rand J. in R. v. Boucher, supra, at 270, “The role of the prosecutor excludes any notion of wining or losing; his function is a matter of public duty … It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.” Moreover, as Kerwin C.J. noted in R. v. Boucher at 265, the Crown’s role is to assist the jury
but he exceeds that duty when he expresses by inflammatory or vindictive language his own personal opinion that the accused is guilty, or when he expresses by inflammatory or vindictive language his own personal opinion that the accused is guilty, or when his remarks tend to leave the jury an impression that the investigation made by the Crown is such that they should find the accused guilty.
[337] More recently, the Supreme Court acknowledged in R. v. Cook (1997), 1997 CanLII 392 (SCC), 114 C.C.C. (3d) 481 at para. 21 (S.C.C.), rev’g (1996), 1996 CanLII 7935 (NB CA), 107 C.C.C. (3d) 334 (N.B.C.A.), that while “it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence” it is also “well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth”. Within the adversarial process the Crown is permitted to act as a strong advocate. Within the bounds set out in R. v. Boucher, supra, “the Crown must be allowed to perform the function with which it has been entrusted”: R. v. Cook, supra, at para. 21.
[338] It is well established that the opening address is not the appropriate forum for argument, invective, or opinion. The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case: see R. v. Griffin, [1993] O.J. No. 2573 at paras. 25-31 (Gen. Div.); R. v. Porter, [1992] O.J. No. 2931 (Gen. Div.); R. v. Sun, [2002] O.J. No. 2166 (S.C.J.); R. v. White, [1997] O.J. No. 5899 (Gen. Div.). Simply put, “the Crown’s opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call”: R. v. Griffin at para. 31. At the opening of the trial the rules constraining the Crown “should apply with even more vigour” than at the closing when by then the jurors have heard and seen all about the case: R. v. Griffin at para. 23.
[339] With respect to closing addresses, the Crown is afforded greater latitude: see R. v. Baltrusaitis (2002), 2002 CanLII 36440 (ON CA), 58 O.R. (3d) 161 (C.A.). While Crown counsel must at all times conduct themselves with dignity and fairness, they are entitled to advance their position forcefully when making closing submissions. In R. v. Daly (1992), 57 O.A.C. 70 at 76 (C.A.), this court observed:
A closing address is an exercise in advocacy. It is the culmination of a hard fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present their positions in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation.
[340] The closing address is the proper forum for argument and the Crown is certainly entitled to argue its case forcefully. The Crown should not, however, engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness: see R. v. Grover (1991), 1991 CanLII 25 (SCC), 67 C.C.C. (3d) 576 (S.C.C.), rev’g (1990), 1990 CanLII 11030 (ON CA), 56 C.C.C. (3d) 532 (Ont. C.A.); R. v. Romeo (1991), 1991 CanLII 113 (SCC), 62 C.C.C. (3d) 1 (S.C.C.), rev’g (1989), 1989 CanLII 7122 (NB CA), 47 C.C.C. (3d) 113 (N.B. C.A.); R. v. Munroe (1995), 1995 CanLII 8921 (ON CA), 96 C.C.C. (3d) 431 (Ont. C.A.), aff’d (1995), 1995 CanLII 84 (SCC), 102 C.C.C. (3d) 383 (S.C.C.).
[341] In a protracted and hard fought trial such as this, one with months of pre-trial proceedings and allegations of abuse of process, it may be difficult for the Crown to resist rhetorical excess. But resist it must, even when provoked by what Crown counsel perceives to be obstructive and truculent behaviour by the defence.
[342] In our view, the opening address of Crown counsel called for corrective action by the trial judge. Crown counsel was not content to follow the orthodox path and open by simply outlining for the benefit of the jury the case she intended to present. Regrettably, Crown counsel demeaned the position of the defence and the role of defence counsel, engaged in pre-emptive argument, undermined the presumption of innocence, and expressed her personal opinion as to the guilt of the appellants. Phrases such as “the glaring spotlight of guilt” and the reference to there being “no shadows of doubt to crawl behind, no dark corners to hide from the scrutiny of truth”, and the suggestion that the defence would try to “seduce” the jury to ignore the evidence were plainly inappropriate and set an unfortunate tone for the balance of the trial.
[343] We do not say that the trial judge necessarily erred by failing to declare a mistrial after the Crown opening. We agree with the Crown that it was within the discretion of the trial judge to conclude that the comments were not so egregious as to require a mistrial. On the other hand, it is our view that some corrective action was called for. The trial judge should, at a minimum, have admonished the overly aggressive trial Crown for violating the R. v. Boucher, supra, standard and instructed the jury to ignore the objectionable passages of the Crown’s opening address. As we have already indicated, by anticipating and attempting to pre-empt the attack on the integrity of the investigation, the Crown set the trial of that issue off on the wrong course.
[344] In her closing address the Crown again demeaned and denigrated the role of defence counsel, and, with considerable rhetorical flourish, portrayed the defence as deceptive and obstructionist, intent upon diverting the jury’s attention from the truth. While it is not improper for the Crown to identify for the benefit of the jury defence arguments inviting speculation, Crown counsel’s comments in this case were not in keeping with the standard outlined in R. v. Boucher, supra.
[345] We recognize that there are many cases involving similar remarks, uncorrected by the trial judge, that have been found by this and other courts not to be fatal: see e.g. R. v. Baltrusaitis, supra; R. v. Clark (2004), 2004 CanLII 12038 (ON CA), 69 O.R. (3d) 321 (C.A.); R. v. Daly, supra. In view of the numerous other errors to which we have referred, it is not necessary for us to pronounce definitively upon the effect of the Crown’s rhetorical excesses. Suffice it to say that we view the passages we have quoted from the Crown’s opening and closing to have been inappropriate, and that in our view, at a minimum, the trial judge should have given a corrective instruction to redress the imbalance it created and to alleviate the risk that the jury might be improperly influenced.
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