Today the Court of Appeal released the judgment of R. v. Boudreau, 2012 ONCA 830 that reminded lawyers the extent to which they may properly advocate their positions in closing addresses, particularly as it relates to Crown counsel in this appeal. The appeal arose out of a double homicide that was motivated by thefts and counter-thefts of marijuana plants from grow operations and then exacerbated by suspicion and mutual feelings towards the same woman.
The appellant raised four issues in total, but the one most legally significant was that of closing addresses. It was conceded on appeal that the Crown’s closing address was sarcastic and inflammatory in tone and speculative and factually inaccurate in content, at least in part. In dismissing this ground of appeal, and ultimately dismissing the appeal as a whole, the Court stated a number of principles of law that all counsel ought to keep in mind when addressing a jury in a closing address. On the side of propriety, the Court noted that
- Counsel are entitled to a fair degree of latitude in their closing addresses to the jury;
- A closing address is an exercise in advocacy and is a culmination of a hard fought adversarial proceeding;
- Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively; and,
- 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.
- 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; and,
- 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
The Court of appeal found that despite the comments made by the Crown, that was all corrected by the trial judge who, in a “blunt and strongly-worded addendum” identified and explicitly discussed several statements by Crown counsel that he considered fell into the realm of sarcasm and speculation. He also explicitly instructed the jury that counsel’s opinion of witnesses was irrelevant. Such a charge to the jury overcame any notion of unfairness in the Court of Appeal’s view and this ground of appeal was dismissed.
Other examples of improprieties for Crown counsel include, but are not limited to:
- When the Crown’s closing statement strongly implies that the jury should infer guilt from the accused’s silence, it prejudices the accused’s right to a fair trial: Biladeau, 2008 ONCA 833, at paras. 21,31-36;
- Crown counsel to repeatedly express a personal opinion about the appellant’s guilt and his lack of credibility, while vouching for the honesty and integrity other witnesses: R. v. B.(D.M.) (Ont. C.A., January 18, 2005) endorsement; and,
- It is wrong for the Crown to present speculative propositions, unsupported by the evidence, in an attempt to explain away gaps in the Crown’s case or inconsistencies in the evidence: see R. v. Nugent (1995), 100 C.C.C. (3d) 89 (Ont. C.A.) at 94; R. v. Walker (1994), 90 C.C.C. (3d) 144 (C.A.) at 154, R. v. Tombran  O.J. No. 273.
It must be remembered that a Crown’s address to the jury must be fair and restrained. As stated by the Ontario Court of Appeal in R. v. Mitchell,  O.J. No. 3443:
He or she must be accurate and dispassionate and not misstate the evidence or make assertions for which there is no evidence. This court commented on Crown counsel’s obligations in addressing the jury in R. v. Nugent (1995), 100 C.C.C. (3d) 89 (Ont. C.A.) at 96.