Il est inapproprié d'utiliser un power point lors d'une plaidoirie devant jury sans avoir préalablement obtenu l'assentiment du juge

Boulachanis c. R., 2020 QCCA 4

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[76]      Without having previously advised the trial judge or the appellant’s counsel of his intention to do so, Crown counsel used an extensive PowerPoint presentation during his closing address to the jury. The exhibit is in colour, appears to have been prepared professionally, and is composed of 173 slides. They consist of selected extracts from the testimony of several Crown witnesses[24] as well as a few exhibits which formed part of the record. The extracts from the testimony did not always include the questions which gave rise to the selected answers, and the extracts chosen were not always the complete answer to a question.

[77]      The jury was not given a copy of the PowerPoint during Crown counsel’s submissions, nor for their use during their deliberations.

[78]      The trial judge made it clear, however, that had he been made aware of the intentions of Crown counsel to use the impugned PowerPoint, he would have refused the request. That being said, the trial judge did instruct the jury in a manner that cast significant doubt on the integrity of the PowerPoint:

Dans sa plaidoirie, maître Gagnon, l’avocat de la Couronne, a utilisé un power point lorsqu’il a fait référence oralement aux extraits des témoignages. Ni le power point, ni sa plaidoirie n’inclut toutes les questions précédant une réponse d’un témoin. Toutes les réponses d’un témoin par rapport à une question ne font pas partie de ce power point ou de cette plaidoirie.

[79]      I appreciate that a different trial judge might have decided this issue differently, perhaps by delivering a robust criticism of Crown counsel’s use of the PowerPoint during his instructions without that counsel having observed the professional courtesy of disclosing his intentions before use was made of it, or even more critically, having prevented Crown counsel from using the PowerPoint until the propriety of its use was determined.

[80]      That being said, the trial judge was faced with an unexpected problem and appears to have navigated it in a reasonable manner. In this respect, the cautionary words of Watt, J.A. on behalf of the Court of Appeal for Ontario in R. v. McGregor[25] are applicable:

[182]   None can gainsay that the trial judge is in the best position to gauge the impact of closing submissions made by either counsel. The trial judge can take the temperature of the trial. As an eye and ear witness to the entire proceedings, including both jury addresses. In that position the trial judge can assess the apparent significance or otherwise of the impugned remarks, and determine whether and to what extent correction or other remedial action may be required: R. v. Sarrazin, 2016 ONCA 714, at para. 57; R. v. Zvolensky, 2017 ONCA 273, 352 C.C.C. (3d) 217, at para. 186; R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 126. We accord substantial deference to the trial judge’s conclusions on these issues. This is as it should be.

[81]      I would reject this ground of appeal, while nevertheless admonishing Crown counsel for the unprofessional manner in which he introduced the PowerPoint without any prior notice to the judge or to defence counsel.