IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100614

Docket: 09-1231

Registry:
Victoria

Between:

R.K.
by his Litigation Guardian O.L.

Plaintiff

And:

B.R.

Defendant

Ban
on Publication Lifted for these Reasons

Before:
The Honourable Mr. Justice N. Brown

Reasons on

Application for Jury Dismissal

Introduction

[1]            
The defendant applied to discharge the jury and continue the trial by
judge alone, pursuant to Rule 41(7) of the Rules of Court. He objects to
portions of the plaintiff’s closing submissions that he says have no basis in
the evidence, are inflammatory and prejudicial, and could lead to the jury
returning an improper verdict.

[2]            
Following submissions on May 19, 2010, I granted the defendant’s
application, discharged the jury, and continued to hear the case alone,
reserving full written reasons for my decision. These are my reasons for allowing
the defendant’s application.

[3]            
The proceedings are subject to a publication ban, lifted for the
purposes of this judgment. Because of the sensitive nature of the proceedings, I
have given the parties pseudonyms.

Background

[4]            
This case resulted from the defendant’s sexual assault of the plaintiff
at the defendant’s home on April 19, 2008. The plaintiff was 17 at the time. Beforehand,
the plaintiff had been at a party with his best friend and other friends. He became
intoxicated, felt poorly and so decided to leave the party.

[5]            
Rather than go straight home, the plaintiff decided to stop at his best friend’s
home to see if he could spend the night. His friend had not come home yet. It had
been raining with slushy snow on the ground as the plaintiff walked most of the
considerable distance to the defendant’s house, so he was soaking wet when he arrived.

[6]            
His best friend’s father, the 52-year-old defendant, answered the door
and said the plaintiff could spend the night. The defendant sexually assaulted
the plaintiff later that night.

[7]            
The defendant admits the sexual assault, but in his pleadings denies the
plaintiff suffered damages. The trial proceeded on that basis. The jury heard evidence
over three days. It heard testimony from the plaintiff, the plaintiff’s mother
and a psychologist, Dr. J.C. Pulleyblank. The plaintiff also filed Dr.
Pulleyblank’s expert report as well as an expert report prepared by Dr. R. Miller,
a psychiatrist. The defendant also testified.

[8]            
The plaintiff claims non-pecuniary damages, aggravated damages, punitive
damages, loss of earning capacity, and for cost of future care. The defendant’s
initial position was that the plaintiff suffered no damages; but during the
trial, counsel for the defendant stated that he intended to acknowledge that
the plaintiff was entitled to an award for counselling and for non-pecuniary
and aggravated damages. Therefore, the only issues for the jury to decide would
be quantum on those heads of damages and whether the plaintiff should receive
an award for punitive damages and loss of earning capacity and, if so, how
much.

[9]            
After the defendant closed his case, plaintiff’s counsel delivered an
impassioned closing submission. During it, he questioned the defendant’s
decision to stay in the courtroom while the plaintiff testified. He suggested
the jury could infer the defendant had remained in court to intimidate the
plaintiff, or to draw pleasure from seeing his victim again. He also suggested
the jury could infer that the defendant had been grooming the plaintiff for a
sexual encounter. Plaintiff’s counsel also suggested to the jury that the
plaintiff would see the defendant’s face whenever he made love.

[10]        
After plaintiff’s counsel finished his closing submission, the defendant
made this application. The defendant says the above comments were highly
inflammatory and had no basis in the evidence. He submits the comments amount
to misconduct. He argued I should discharge the jury and either continue the
trial without a jury or declare a mistrial.

Impugned Comments

[11]        
What follows is the transcript of the impugned comments.

1.         Allegations of grooming:

 Anyway,
you’ve heard all of that to show you what sort of a kid [the plaintiff] was and
is. He’s 19, but he’s still a kid. And what’s that got to do with the harm that
was caused to him by [the defendant]? [The defendant] called. He called him on
more than one occasion. He asked if [the plaintiff] could sleep over. He got
alcohol for the boys. Then when [the plaintiff] came over looking for refuge
that night, [the defendant] was lying in wait.

 What
was he doing by calling and asking [the plaintiff] or [the plaintiff’s]’s mom
if [the plaintiff] could come over? What was he doing buying alcohol for boys
of this age? You might rightly conclude that he was grooming [the plaintiff].
He was a spider laying [sic] in his web waiting to trap [the plaintiff]. He was
a lion waiting in the bush for his prey to come by. It doesn’t matter what
analogy you use. The result is the same. [The plaintiff] was the prey and [the
defendant] the predator. He was waiting for him.

2.         Allegations
that for the rest of his life, the plaintiff would see the defendant’s face while
making love:

Rudyard Kipling wrote a poem
called The Virginity. He said:

Try as he will, no man breaks
wholly loose From his first love, no matter who she be. We’ve only one
virginity to lose, And where we lost it there our hearts will be!

That’s something that [the
plaintiff] will never look forward to. He’s never going to have a first love
and a first sexual experience that he can look back on with loving and warm
memories. Instead, [the plaintiff] will live to the age, if he does live to the
age as most of us can expect, around 80 or so, he’s got 60 years ahead of him
and every time he makes love, he’s going to remember his first experience, what
[the defendant] has done to him. Can you imagine every time you make love for
the rest of your life you see [the defendant], you see his face?

3.         Allegations
regarding the defendant’s reasons for staying in the courtroom during the
plaintiff’s testimony:

Relating what [the defendant] did
to him and reliving those awful moments for all of us here in the courtroom was
not helped by [the defendant] who stayed in the courtroom the whole time. [The
defendant] didn’t have to stay here. You saw the sensitivity that [the
plaintiff’s mom] showed her son when she left the courtroom during his direct
examination so she wouldn’t — he wouldn’t have to have to have [sic] his mom
hear once again. But [the defendant]? He didn’t even have the integrity to let [the
plaintiff] tell what happened to him without [the defendant], his abuser, being
here.

Why did he have to be here? He knew
what was going to be said. He was the perpetrator. He knew what he’d done. He
had a lawyer who could relate it to him later if he didn’t. What was the reason
that he stayed in the room? What was the reason for his presence? We don’t know.
I can make some suggestions to you.

Was it so his presence would intimidate [the plaintiff] and [the
plaintiff’s]’s evidence would be less damaging? We don’t know. That’s for you
to judge. Was it because [the defendant] was allowed — it was allowed to him
in some sick way to look at [the plaintiff], the boy he had coveted and relived
those moments with a young boy that he clearly wanted? We don’t know. That’s
for you to judge. Was it because [the defendant] is simply an insensitive clod
who has no regard for the fear and hurt he planted in [the plaintiff]? We don’t
know. That’s for you to judge. What we do know is that [the plaintiff] gave his
story even in the presence of his abuser. He clearly found it incredibly
difficult to do so, but he did. Someone who is sensitive to the hurt of others
would’ve left the room.

[12]        
Counsel for the defendant was particularly concerned over counsel for
the plaintiff’s statements about the defendant’s presence in the courtroom during
the plaintiff’s testimony, especially in light of a letter he sent to plaintiff’s
counsel, Mr. McLeod, on May 7, 2010. It states:

…I have instructions from my
client that he is willing to waive his right to be present at the trial during
the plaintiff’s testimony so as not to upset [the plaintiff] if that is what [the
plaintiff]’s [sic] wants. Please advise if that is what your client wants as if
that is the case then it will need to be commented on to the jury so that they
do not draw any adverse inference from the fact that my client is not in the
Courtroom at the time of [the plaintiff]’s testimony.

[13]        
On May 13, 2010, Mr. McLeod responded:

I do not think it is appropriate
to tell you whether or not your client should or should not be present during [the
plaintiff]’s evidence. I think that is a choice that your client will have to
make. What to make of your client’s choice, whichever it is, is something that
will be best left to counsel at the end.

[14]        
Counsel for the defendant says a fair reading of his letter is that his
client was exercising some compassion, and that Mr. McLeod’s response was
ambiguous. He says Mr. McLeod’s letter was similar to a breach of an
undertaking because instead of replying in a clear fashion to his client’s
offer, counsel replied ambiguously and then took advantage of his ambiguous
response. Defendant’s counsel submits the most natural reading of Mr. McLeod’s
letter was that he had planned for this eventuality.

Legal framework

[15]        
Rule 41(7) governs when a judge should dismiss a jury and continue to
hear the case alone. It states:

(7)   Where, by reason of the
misconduct of a party or the party’s counsel, a trial with a jury would be
retried, the court, with the consent of all parties adverse in interest to the
party whose conduct, or whose counsel’s conduct is complained of, may continue
the trial without a jury.

Positions of the Parties

[16]        
Counsel for the plaintiff submits that counsel are entitled to receive a
great deal of latitude in closing submissions, and that his submissions do not
amount to misconduct. He says it was proper for him to comment on why the
defendant remained in court during the plaintiff’s testimony. He says his
letter was straightforward, informing counsel for the defendant that he would
make a determination of how to deal with the defendant’s absence or presence in
the courtroom at the end of the trial, which is what he did.

[17]        
He also says that his comments regarding grooming the plaintiff and the
plaintiff seeing the defendant’s face when making love for the rest of his life
had a basis in the evidence, and were perfectly permissible in closing
argument. He says the test of whether a submission is permissible is whether
there is some evidence, however slight, upon which to base the submission. He
says the inferences he asked the jury to draw met this test. In any event, he
says the court can cure any prejudice to the defendant through instructions to
the jury.

[18]        
The defendant submits that counsel for the plaintiff’s submissions
inviting the jury to draw adverse inferences from the fact the defendant
remained in the courtroom while the plaintiff testified amounts to misconduct
and was highly prejudicial, especially given the correspondence that passed
between counsel on the issue. He says counsel’s statements were highly
inflammatory, and that Mr. McLeod took deliberate advantage of the defendant’s
offer to leave the courtroom during the plaintiff’s testimony.

[19]        
He also says there is no basis in the evidence for Mr. McLeod’s
suggestions that the defendant was grooming the plaintiff or that the plaintiff
will see the defendant every time he makes love for the rest of his life. The
defendant says that these statements were highly inflammatory and amount to
misconduct.

[20]        
The defendant says instructions to the jury would not cure the totality
of the prejudice resulting from counsel’s comments. He says any attempt by the
court or counsel to instruct the jury to disregard the numerous prejudicial
aspects of his submissions would either further prejudice the defendant by
re-emphasizing the prejudicial portions of his submissions, or would prejudice
the plaintiff by casting doubt in the jury’s minds about everything counsel for
the defendant had said during the trial.

Analysis

[21]        
The alleged misconduct occurred during closing submissions. As counsel
for the plaintiff notes, counsel have a wide latitude to effectively advocate
on their client’s behalf during closing submissions. Cahoon v. Brideaux,
2010 BCCA 228, is the most recent decision from the Court of Appeal on the
acceptable parameters of closing submissions. In it, Smith J.A., speaking for
the court, states:

[18]      …counsel should ask
every question she thinks will help her client’s case and make every argument
in her client’s favour that is legitimately open on the evidence. In contrast
to an opening statement, which should be purely informational, a closing jury
submission is argument (see [Brophy v. Hutchinson, 2003 BCCA 21,
48 B.C.L.R. (4th) 349], para. 41) and the object of argument is persuasion.
Thus, counsel should state her client’s positions as forcefully as the evidence
reasonably permits and without fear of offending the sensibilities of witnesses
and other parties. Drama and pathos are permissible, though their use may be
risky before modern sophisticated juries who may resent theatrical attempts to
divert them from a reasoned analysis. Competent counsel will marshal the
evidence in as favourable a light as possible for her client, analyze the evidence,
relate the evidence to the law, and suggest inferences while leaving it to the
jury to draw the desired inferences. She will not make irrelevant and
prejudicial appeals designed to provoke hostility to or prejudice the jury
against her opponent.

[22]        
When addressing the subject in Cleeve v. Gregerson, 2009 BCCA 2,
89 B.C.L.R. (4th) 67, Kirkpatrick J.A. at para. 49, speaking for the court,
quotes the following from Stewart v. Speer, [1953] O.R. 502 (C.A.) at 508:

It was said by Mr. Justice Riddell in Dale v. Toronto R.W.
Co. (1915), 34 O.L.R. 104 at 108, 24 D.L.R. 413, that: "… a jury
trial is a fight and not an afternoon tea." He further said that counsel
has the right to make an impassioned address on behalf of his client and that
in some cases it is his duty to do so, so long as it does not offend in other
respects, and the Court should extend considerable latitude, "even to
extravagant declamation". But the learned judge qualified this statement
by stating that an unfair presentation to the jury should at once be checked
and would warrant the trial judge in trying the case alone.

There is truth in the observation
made by Mr. Justice Riddell that a jury trial is a fight but, giving this
remark its full value, there are certain rules which must be complied with,
designed to ensure fair play to the opposing parties, whether in a fight or in
a lawsuit. Although rhetoric which verges on the extravagant may be made use
of by counsel, there is a general rule which common sense alone dictates, and
that is that the language of counsel to a jury should not be of such character
as is likely to prejudice the cause of an opponent in the minds of honest men
of fair intelligence to such an extent as to work an injustice. [Italics in
original.]

[23]        
Madam Justice Kirkpatrick also discussed the basic questions a judge
should have in mind when deciding whether to dismiss a jury because of
prejudicial comments or otherwise unacceptable statements at paras. 42-45:

[42]      There is a heavy onus on the applicant to establish
that the prejudice is so great that it cannot be remedied by the court.
Ultimately, the trial judge must be of the opinion that the comments or conduct
in issue caused a substantial wrong or miscarriage of justice, so that it would
be unfair to continue with the present jury (Hamstra v. British Columbia
Rugby Union, [1997] 1 S.C.R. 1092, 34 B.C.L.R. (3d) 10).

[43]      The question is whether the particular jury, in the
particular circumstances of the case, will be able to dispel the matters of
concern from their minds (Martin Estate v. Pacific Western Airlines, Ltd.
(1981), 34 B.C.L.R. 39, 24 C.P.C. 237 (S.C.); Schram v. Osten, 2004 BCSC
1789, 33 B.C.L.R. (4th) 336).

[44]      In other words, the trial judge must determine that
she or he cannot disabuse the minds of the jury in regards to the inflammatory
remarks made by counsel (McLachlan v. Hamon, 2001 BCSC 1679; Martin
Estate v. Pacific Western Airlines, Ltd.; Birkan v. Barnes (1992),
69 B.C.L.R. (2d) 132, 93 D.L.R. (4th) 392 (C.A.)).

[45]      Even where several
errors have been made by counsel, an immediate and final instruction to the
jury concerning the issues of concern may be sufficient to prevent a
substantial wrong (Schram v. Osten).

[24]        
While instructions to the jury may suffice, they can also further
prejudice a party, especially when the jury has heard several improper
statements during a short submission. As noted in Aberdeen v. Langley
(Township), 2006 BCSC 2062 at paras. 44 and 45, further instructions saying
that the jury should ignore certain statements can, through repetition of them,
magnify the statements and enhance their prejudicial effect. Conversely,
instructions to the jury to disregard all of counsel’s submissions could
“create a negative cloud” over the plaintiff, thus tipping the scales too far
in the opposite direction. I am particularly concerned about the effect of
instructions to the jury in the instant case because in my view I could not
sufficiently address the prejudicial nature of the statements about the
defendant remaining in the courtroom without drawing the jury’s attention to
the correspondence between counsel.

[25]        
Considering all the circumstances and applying the above framework to the
case at bar, I find that the impugned portions of counsel’s submissions were
highly prejudicial. First of all, the submission that the plaintiff will see the
defendant’s face every time he makes love for the rest of his life has no
foundation in the evidence. It was a highly speculative statement, with the
sole purpose of inflaming the jury against the defendant. Counsel for the
plaintiff says the statement did have a basis in the evidence because the
plaintiff testified that he remembered the assault a couple of times a week,
sometimes upon waking. He says Dr. Pulleyblank’s evidence that similar
situations could trigger painful memories is a further factual basis for his
argument.

[26]        
This argument is unconvincing. The evidence counsel relies on does not
support the inference he asked the jury to draw; especially given evidence from
the plaintiff that directly contradicts this statement. The plaintiff testified
that since the assault he has had a positive sexual experience. There was also evidence
that the plaintiff’s symptoms of posttraumatic stress disorder have diminished
over time. To suggest the plaintiff would see the defendant’s face every time
he made love for the rest of his life was more than mere rhetoric verging on
the extravagant; it was a highly inflammatory statement that had no basis in
the evidence.

[27]        
Likewise, counsel’s statement that the defendant groomed the plaintiff for
a sexual encounter by inviting him to sleep over and providing him with alcohol
has no basis in the evidence. Counsel says the basis for it lies in several
statements made during trial. He relies on the statement of the plaintiff’s
mother that two or three months earlier the defendant had phoned to ask if the
plaintiff could sleep over. Counsel for the plaintiff also points to the
plaintiff’s testimony that the defendant sometimes bought beer for his son and
his friends. He also relies on the defendant’s testimony that in his youth he
arranged consensual sexual acts with other males by asking them to ‘sleep
over’. He says these statements, taken together, provide a basis for the jury
to draw an inference that the defendant was grooming the plaintiff for a sexual
encounter.

[28]        
The evidence does not provide a foundation for the statement that the
defendant was grooming the plaintiff. There is no evidence the assault was
premeditated. The defendant admitted he had called the plaintiff’s mother at an
earlier time, but this was at his son’s request and to let the plaintiff’s
mother know it was all right for the plaintiff to sleep over. The plaintiff’s
arrival on the defendant’s doorstep that evening was clearly unplanned. Again,
the sole purpose of this statement was to inflame the minds of the jury against
the defendant. It was improper and amounts to misconduct.

[29]        
Counsel’s comments on the defendant’s presence in the courtroom were
also inflammatory and prejudicial, and amount to misconduct, especially in
light of the exchange of letters between the parties prior to trial. A party
has a right to be in a courtroom. To suggest otherwise is improper. Even more
improper is the suggestion that the defendant remained in court to intimidate
or leer at the plaintiff. The defendant expressed a willingness to absent
himself from the courtroom to spare the plaintiff’s feelings. Casting aspersions
on a party for exercising his right to be present is misconduct. Suggesting a
lack of empathy for remaining in court when counsel knew he had received a
letter from the counsel for the defendant specifically offering to absent
himself if doing so would make the plaintiff feel more comfortable is also
misconduct.

[30]        
Counsel’s submission significantly prejudiced the defendant. The
submission was relatively short. Taking all of Mr. McLeod’s inflammatory and
improper statements together, I concluded that if I were to try to disabuse the
jury of these matters I would simply re-emphasize them in the jurors’ minds. If
I instructed the jury to disregard these portions of counsel’s brief submission
entirely, my comments would likely rebound against anything he had said and
against the plaintiff’s case. I concluded that I could not right the scales of the
resulting prejudices with instructions anywhere close to neutral again. I must
ensure there is no prejudice to either side. I do not see how any corrective
judicial comments could do anything but suggest that counsel had misled the
jury, intentionally or not.

[31]        
A judge discharges a jury with great reluctance. In this case, the jury
was well constituted. They were attentive. At the beginning of the trial, I carefully
explained their important role in the judicial system in British Columbia and
the confidence placed in them. Discharging a jury in these circumstances
embarrasses the court and, more importantly, tends to undermine public
confidence in the justice system.

[32]        
However, given the circumstances, and considering the potential
prejudice, no less to the plaintiff’s case then to the defendant’s, it would be
unfair to continue with the jury in the circumstances. The only appropriate
response was to discharge the jury with the regrets and thanks of the court.

[33]        
The defendant’s application to dismiss the jury and continue by judge
alone is granted.

_________________________________

“The
Honourable Mr. Justice N. Brown”