Gordon Gray c. R., 2025 QCCA 1602
While the “[g]uiding principles have been authoritatively formulated, reiterated and applied by appellate courts throughout the country”,[9] the closing address in this case suggests that the relevant principles appear to have been forgotten. (par. 35)
[35] While the “[g]uiding principles have been authoritatively formulated, reiterated and applied by appellate courts throughout the country”,[9] the closing address in this case suggests that the relevant principles appear to have been forgotten.
[36] A summary of those principles seems overdue.
[37] In R. v. Vallières, more than fifty years ago, Brossard J.A. warned against closing addresses by the prosecution where psychological or passionate grounds might weaken the objective analysis of the evidence:
[translation]
[N]o statement may be made by counsel for the Crown, which might induce a jury to base a conviction upon psychological or passionate grounds which might affect the most objective and just treatment of the accused […].[10]
[38] In 1990, in R. v. Charest, Fish J.A. (as he then was) provided a useful summary of the governing principles that are at stake in this appeal. They hark back to the mid-1950s pronouncements by the Supreme Court in the seminal case of Boucher:[11]
The principles which emerge from Boucher, Vallières and other leading cases, supra, footnote 2 may be summarized as follows. Crown counsel’s duty is not to obtain a conviction, but “to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime”: Boucher v. The Queen, supra, per Rand J. at p. 270. The Crown should press fully and firmly every legitimate argument tending to establish guilt, but must be “accurate, fair and dispassionate in conducting the prosecution and in addressing the jury”: Pisani v. The Queen, supra, per Laskin J. (as he then was) at p. 478, for the court. It is improper for Crown counsel to express his or her opinion as to the guilt or innocence of the accused, per Locke J. in Boucher, at p. 273, or as to the credibility of any witness. Such expressions of opinion are objectionable not only because of their partisan nature, but also because they amount to testimony which likely would be inadmissible even if Crown counsel had been sworn as a witness: see Locke J. in Boucher, at p. 273. Crown counsel should not advert to any unproven facts, even if they are material and could have been admitted as evidence. Applicable principles of law should be left for the judge to explain; when reference to the law is necessary for the purpose of making an argument, the law should be accurately stated.[12]
[Emphasis in the original; reference omitted]
[39] In 1998, Cory J. observed in Rose that the prosecution is “duty bound during its jury address to remain true to the evidence, and [Crown counsel] must limit his or her means of persuasion to facts found in the evidence presented to the jury”.[13]
[40] In 2007, in R. v. Trochym, Deschamps J. emphasized the importance of persuading the jury by reason and not by rhetorical flourishes:
Crown counsel are expected to present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts. However, it is not the Crown’s function “to persuade a jury to convict other than by reason”: R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 11 C.R. (4th) 200 (Man. C.A.), at para. 59. Rhetorical techniques that distort the fact-finding process, and misleading and highly prejudicial statements, have no place in a criminal prosecution.[14]
[41] I conclude with the sage observation by Galligan J.A. of the Ontario Court of Appeal in his dissenting opinion in Munroe,[15] which appropriately underlines the importance of objectivity over passion and prejudice in conducting criminal trials:
[70] Throughout history, there have been times when public opinion demonstrates strong and passionate antipathy towards certain types of crimes and towards those persons who perpetrate them. It has always been the responsibility of the courts to ensure, as best they can, that individuals charged with those offences are tried objectively, solely upon the evidence against them, in an atmosphere removed from the potential prejudice which the public antipathy could generate. Everyone involved in the trial process is required to do what he or she can to ensure that trials are conducted objectively and dispassionately. If the courts are allowed to be moved by passion or prejudice, justice as we know it fails.[16]
[42] While all these standards are fundamental and should be respected, no one should doubt that the prosecution may act “as a strong advocate within [the] adversarial process” and that “it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability”.[17] And, as the Ontario Court of Appeal acknowledged in Daly, this includes a closing address:
A closing address is an exercise in advocacy. It 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. 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.[18]
[43] In Hurd, Pepall J.A. of the Ontario Court of Appeal recognized the delicate balance to be reached between vigorous advocacy and fairness during a hard-fought murder trial:
[32] Crown prosecutors are advocates who are expected to act rigorously but fairly, persuasively but responsibly. A criminal prosecution takes place within the parameters of an adversarial system. As Moldaver J.A. emphasized in Clark, at para. 126, a murder prosecution is not a tea party: “both sides [are] entitled to press their case and put their best foot forward.”
[…]
[34] While these principles are easy to state, Crown counsel’s dual role presents a certain tension and the application of the principles sometimes proves challenging. Nonetheless, Crown counsel must never part company with fairness and integrity. The fundamental question to be answered in each case is: has the accused been deprived of a fair trial?[19]
It must be acknowledged that the improper comments uttered in this case are not the most egregious examples of inflammatory or incendiary submissions that one finds in the jurisprudence. That said, a closing address may be improper without rising to the level of being inflammatory. (par. 52)
[52] It must be acknowledged that the improper comments uttered in this case are not the most egregious examples of inflammatory or incendiary submissions that one finds in the jurisprudence. That said, a closing address may be improper without rising to the level of being inflammatory.
[53] While a new trial is required, I do not subscribe to the appellant’s point of view that the closing address illustrates a “winning at all costs” approach by the prosecution in this case.
[54] Some missteps were probably inadvertent, others simply careless, and I suppose that some were likely the result of being “caught up in the moment after a long, hard-fought trial”.[25] Furthermore, it is also apparent that the prosecutor’s own personal empathy and sympathy towards the prosecution’s witnesses, while humanly understandable, contributed to some ill-advised comments that were meant to pre-empt a challenge by the defence to the witnesses’ credibility and reliability.
[55] Ultimately, the overall tone was not fair and dispassionate, as was required.
[56] While the trial judge evidently attempted to address some of the problems raised by the prosecutor’s closing address, the curative instructions were too general and insufficiently potent to overcome the unfairness resulting from the numerous improper comments. They unfortunately lacked the required clarity, specificity and forcefulness.
[57] I will now address, in turn, the most problematic themes identified by the appellant in the prosecution’s closing address. In that regard, one must not forget “the powerful persuasive force which well‑crafted and skilfully presented submissions may have in a jury trial”.[26]
Use of the moral authority of the prosecution to buttress the prosecution’s case
[58] It is improper for the prosecution “to appeal to the jury to place its faith in the Crown and/or the police”.[27] As Kerwin C.J. noted in Boucher, the prosecutor exceeds his duty to assist the jury “when his remarks tend to leave with the jury an impression that the investigation made by the Crown is such that they should find the accused guilty”.[28] In other words, the prosecution should not leverage the weight of its office to convince the jury of an accused’s guilt.[29]
[59] Donald J.A. of the British Columbia Court of Appeal described the influence of the moral authority of the prosecution as follows:
Crown counsel is the surrogate of the Attorney General, the chief law officer of the Crown, and thus represents the guardian of law and order and as such he or she has a greater potential to influence the jury than counsel for the defence. Moreover, Crown counsel leads off in the trial and sets the tone of the proceeding. Emotions tend to run high in jury trials dealing with serious crimes especially in cases like the present one. Crown counsel is expected to behave in a dispassionate and impartial manner to reduce the emotional level and foster a rational process. It takes no skill to whip up feelings against the accused in a case like this and it threatens the integrity of the trial. Applying opprobrious labels to the accused, as was done here, does nothing to advance the case; instead it cheapens the dignified position that the Crown should occupy in the criminal law.[30]
[60] Any “attempt to puff up the case by putting the personal belief of Crown counsel or the weight of the Crown’s office behind the desired guilty verdict”[31] is unacceptable, whether it is suggested directly or indirectly.
[61] At the outset of his address, the prosecutor stated that “the evidence is such that when your President is asked for his verdicts at the end of your deliberations, he should answer with a resounding guilty on both counts of the indictment”.
[62] The use of the word “resounding” is surprising. While it could be viewed as benign albeit misplaced – because the criminal justice system does not seek resounding verdicts from juries but, rather, just verdicts – it was a harbinger of the coming transgressions in the prosecutor’s closing address and the overall tone of his address.
[63] Initially, the prosecutor introduced himself as part of the prosecutorial team, but he turned to the use of the collective “we” or “us” and “the prosecution” in his submissions. Here are a few excerpts where, implicitly or explicitly, the prosecutor expressed his opinion and pointed to his role to strengthen the jury’s confidence in the case put before them:
You will read in A-3 we did not find the DNA of the Accused on the crime scene. Do you think that we only charge people with murder when we have DNA? Judge Décarie will explain all there is to know about that. Go by the evidence that you have, do not speculate.
[…]
Yes, Miss Théberge could not, could not formally identify the Accused in Court, that’s true, that’s a fact, just like the DNA, and the knife, I mean it’s there, won’t make no bones about it, you have to look at the entire picture. I try to do that, it’s my job to do it as Crown Prosecutor.
[…]
I’m saying it’s Mr. Gray because I’m the Prosecutor, I believe in this case, but it’s for you to decide, okay. Think about that, could she be wrong on identification? I submit that it’s impossible.
[…]
For us it is clear, it is very clear that the Accused caused the death of Edwin Johnson, a forty-eight (48) year old man that was in good health when he sat at that now famous picnic table to have… to just have a chat with his good friend Brenda Théberge that morning at Viger Park. He would not have died if it weren’t for him being struck by the Accused’s knife. “Just a little bit” was enough to kill him.
[…]
What I want you to decide on is who is behind those phone numbers. And when you do that you’ll… I’m pretty confident that you will find that the guy that hit Miss Mihalick and Mr. Johnson is him. The guy who left the Viger Park in a hurry without his girlfriend, that’s him. The guy who admitted to his girlfriend that he stabbed him “just a little”, that’s him. Paul Gray is that guy and as a result the Prosecution submits that he is guilty.
[…]
When you reach a conclusion we are confident, very confident that you will find that Mr. Paul Evans Gordon Gray is guilty of the second-degree murder of Edwin Johnson and guilty of assaulting Sonya Mihalick while threatening to use a weapon. Thank you.
[64] Collectively, these excerpts suggest that the prosecution and its counsel should be trusted. Counsel was treading on a forbidden path.
Expression of personal opinion regarding the guilt of the appellant and the credibility of witnesses
[65] The expression of a personal opinion is a slightly different genre from the “trust the prosecution” kind of argument, although they often overlap with each other, as exemplified in this case. That said, the expression of counsel’s personal opinion on the evidence, the credibility of witnesses or the guilt of the accused has also always been universally frowned upon since Boucher.[32]
[66] In R. v. Hurley, Richards J.A. (as he then was) of the Saskatchewan Court of Appeal stated the rule and two of its purposes:
[61] Counsel must not present their personal opinions about the credibility of a witness, the strength of the evidence or the guilt or innocence of the accused. See, for example: R. v. Boucher (1954), 1954 CanLII 3 (SCC), [1955] S.C.R. 16; R. v. Romeo, 1991 CanLII 113 (SCC), [1991] 1 S.C.R. 86. As explained by Sheila Block in Modern Trial Advocacy: Canada, 2d ed. (Toronto: National Institute for Trial Advocacy, 2000) at p. 426, this rule serves two purposes. First, it encourages jurors to decide the case on the basis of the law and the evidence rather than on the basis of their confidence in, or affection for, individual counsel. As Ms. Block says, “[w]hile every advocate strives to be trusted and believed, it subverts the jury system to make an overtly personal pitch.” Second, a statement of personal belief may, in some cases, suggest to the jury that the lawyer has the benefit of information which has not been formally presented as evidence. This too undermines the proper functioning of the jury process.
[62] None of this means that, necessarily and by definition, counsel act improperly if the words “I think” or “I believe” appear in a jury address. It does mean, however, that counsel should minimize the use of the first person in their submissions to the jury and, for that matter, in their submissions to the judge as well. It is perfectly acceptable to argue that the evidence supports a particular result. However, counsel must avoid statements of their personal beliefs as to how the evidence should be weighed, the credibility of witnesses assessed or the case resolved.[33]
[67] In his book Prosecutorial Misconduct, Robert J. Frater, explains that the expression of opinion by prosecution counsel is “unfair in principle”:
Regardless of one’s views as to the inherent weight jurors attach to Crown counsel’s expressions of opinion, such opinions must be regarded as unfair in principle. The golden rule of Crown advocacy in closing addresses is that it must be an appeal to render a verdict “in accordance with cold reason”; that is, one which seeks to persuade on the force of the evidence alone. An attempt to puff up the case by putting the personal belief of Crown counsel or the weight of the Crown’s office behind the desired guilty verdict departs from that principle. […]
Many courts have chastised Crown counsel for injecting themselves into the proceeding in circumstances other than those involving a solemn affirmation of the accused’s guilt. Use of the word “I” is generally frowned upon, as in expressions such as “I think” or “I believe”. The extent to which the behaviour is forgivable may depend on the issues in the case, the frequency of the usage and the fervour of the delivery. This will often be inadvertent behaviour which fails to incite objection by defence counsel, much less a reproach from the trial judge or the court of appeal. Obviously, the comment must be made in the presence of the jury for it to have any prejudicial effect.
Opinion-giving sometimes occurs in the context of discussion of the credibility of a witness. Whether it concerns the accused, a defence witness, or the Crown’s own witness, it does not in any way facilitate the jury’s task. This is often referred to as “vouching” for a witness, and may carry the subtle suggestion that the Crown knows information that the jury does not.
Note that this rule does not prevent all argument on the credibility. What it clearly proscribes is statements such as “I believe this witness when she says…”, as if the prosecutor’s seal of approval gives the testimony added value. But the prosecution can properly argue to the jury that a particular witness ought to be believed for particular reasons. One tactic that the courts have accepted is saying of a complainant “why would the complainant go through all of this if it were not true?”, which may sometimes be a response to the defence impugning the witness’s motives.[34]
[References omitted]
[68] In this case, the prosecutor repeatedly spoke in the first person and made constant statements that conveyed his personal belief, such as “I think”. Throughout his arguments, he also used expressions to the effect of “I think it’s him” or “it’s him” at least nine times.
[69] On one occasion, referring to one of the proposed inferences stemming from the identification of the appellant as the perpetrator of the homicide based upon the International Mobile Equipment Identity serial number of a cell phone used to send text messages presented into evidence, he bluntly stated, “It’s him, he’s guilty, that’s it.”
[70] Counsel also used colourful expressions and phrasing such as “check mate” and “bam, end of story. That’s what happened, okay. That’s what I submit to you anyway” to convey the persuasive nature of some items of evidence, which again incontrovertibly communicated counsel’s opinion. On several occasions, counsel remarked that the evidence was “solid” and even undeniable (“it can’t be wrong”, “it’s impossible” or “this one should not give you too much trouble”).
[71] A reading of the entirety of the address leaves absolutely no doubt that counsel personally believed the appellant was guilty and that he conveyed that opinion to the jury.
[72] It could be argued that the prosecutor’s repeated use of the expression “I submit to you” tempered the fact that he offered his personal opinion, by couching it in a submission to the jury.[35] Nevertheless, I subscribe to the view expressed by Fish J.A. when addressing a similar argument in Kaufman:
[39] I derive no comfort from Crown counsel’s statement to the jurors that they were “not bound” by his personal conviction as to appellant’s guilt, or his opinion on other issues of fact or of law. This in no way diminishes the risk that they were nonetheless influenced by his improper observations and assertions, especially in the light of his announced objectivity and, from their perspective, his privileged position and experience.[36]
[73] At the outset of her final instructions, the trial judge attempted to rectify the expression of counsel’s personal opinion:
So before I start with the… my final instructions there’s just something I want to… I want to comment on just a few things mentioned during closing submissions.
And if there’s anything that the Prosecution said that appeared to be his personal opinion on guilt or on the credibility of witnesses, remember that you must put that aside as it is for you to appreciate the credibility of the witnesses and for you to decide on guilt or not.
And in his arguments he mentioned at one point that the Accused would have been scared of Mr. Kevin White, well, that does not correspond to my memory and my notes of the evidence, which was that it was Tamara Chandler who testified that she… my memory of it, of course, what’s important is your memory of it and your recollection but my memory of it is that she didn’t say we were scared of him, she said that she was scared of Kevin White. So without further ado.
[74] Were the curative comments made by the trial judge before the beginning of her final instructions sufficient to alleviate any concern stemming from the repeatedly expressed opinion by counsel about the accused’s guilt and the credibility of the prosecution’s witnesses?
[75] Regrettably, I must conclude that the comments were insufficient because they were tardy,[37] coming three days after counsel’s problematic remarks, and they also lacked the required firmness and specificity.[38]
[76] Finally, given the extent of the prosecution’s improprieties, I hasten to add that I do not put too much weight on the fact that counsel for the appellant could respond to some of the improper submissions. The circumstances required a firm and potent intervention by the trial judge, beyond the limited comments made here.
Appeal to emotion and sympathy for the witnesses
[77] The appellant claims that counsel for the prosecution also made impermissible emotional appeals in support of its witnesses. He submits that counsel invited the jurors to “put themselves in the position of a victim of a crime, rather than to remain independent triers of fact”.
[78] This, it is argued, was unacceptable oath helping – an attempt to bolster the credibility of the witnesses by relying on sympathy and emotion.
…
[83] All final model jury instructions underscore the irrelevance of prejudice and sympathy during jury deliberations.
[84] Watt J.A. explains the goal of such instructions in his book on jury instructions:
This instruction underscores the requirement that jurors decide the case by an objectiveassessment of the evidence introduced at trial, not an emotional reaction to that evidence. Sometimes, it may be necessary to elaborate or exemplify the potential sources of sympathy or prejudice to more effectively underscore its irrelevance.[40]
[Emphasis in the original]
[85] Undeniably, a more specific instruction may be necessary in some circumstances, and it would have been quite apposite in this case.
[86] The prosecutor called on the jury’s empathy towards the prosecution’s witnesses, stating that they had nothing to gain and were trying to obtain justice for their loved ones, a quest he described as their entitlement to justice. Particularly problematic is the statement to the effect that “these eyewitnesses are strong women that came here to testify to obtain justice for a horrific and senseless killing”.
Propensity reasoning
[87] There was evidence supporting the prosecution’s position that the motive for the victim’s killing was a drug debt. But the submissions put forward went beyond a simple statement to that effect. They extended not only from a drug debt to the appellant’s willingness to kill for a $45 debt in order to preserve his reputation, but also to countless crimes taking place in Montreal because of drug debts:[41]
As you can see from these images, okay, the counting he does it… it’s quite long, you know, he counts every penny, every coin, you see that, okay, watch it. The man is serious about his money, every penny he counts, I submit to you. For someone like that, forty-five dollars ($45.00) that’s important.
Would you be ready to hit a girl, to kill a man for forty-five dollars ($45.00)? Certainly not. But that is not the question, the question is are you convinced beyond a reasonable doubt that this man is? The evidence shows that yes, he’s ready to do that.
[…]
Money is no joke when you’re a drug dealer, when you have a reputation to preserve, when your perception of being shown respect matters a lot. Drug debt, I submit to you, is the motive for countless crimes occurring in the streets of Montreal. Miss Dulcas François explained this to you very clearly. The one we’re concerned with in this trial is just another example.
If you don’t pay the drug that was fronted to you, you are looking for trouble and trouble will come.
[…]
Of course, hitting a girl and killing a man for a forty-five dollars ($45.00) debt may seem ridiculous at first blush, but remember what I said at the beginning during my opening statement, put yourself into their shoes. This is life in the streets, probably very different from the life you live.
Reputation to preserve, “Who do you think you”… I’ll say it again because it’s important, because he said it, it’s a quote, “Who do you think you’re talking to?”, he said it, in a very different tone than the one I’m giving you right now. Remember Miss Théberge’s testimony, that’s what matters.
[…] maybe it’s just not forty-five dollars ($45.00), or just a few… a few dollars, maybe it’s more than that. Maybe it’s about respect, maybe it’s about reputation. Because it’s the streets we’re talking about here. Different codes.
[88] In my view, the argument about motive went astray – starting with a drug debt as a motive and progressing to the appellant being the type of person willing to kill for a $45 debt to preserve his reputation, all of this intertwined with countless crimes committed in Montreal because of drug debt.
[89] Reasoning prejudice distracts jury members from their proper focus on the charge and the evidence. The argument made by the prosecutor was bound to raise “in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest”.[42]
[90] While reasoning prejudice is usually associated with the presentation of similar fact evidence, the prosecution’s “direct invitation to the jury to engage in propensity reasoning was highly improper”.[43]
The prosecution’s address failed to observe the requirements of objective neutrality and dispassionateness expected in a final jury address. (par. 91)
[91] The prosecution’s address failed to observe the requirements of objective neutrality and dispassionateness expected in a final jury address. While some comments may have been made to prevent the jury’s potential critical view of the prosecution’s witnesses, who were marginalized people with difficult life experiences, these comments came at the price of encroaching on established principles of fairness towards the appellant.
[92] Cumulatively, these departures support the need for a new trial.
The speculative inference triggered the need for a Soobrian-like instruction. (par. 110)
[105] The prosecution chose not to cross-examine Ms. Chandler on her discussion with the appellant for fear of revealing why they were together that day. This strategic decision certainly could not justify inviting the jury to speculate about facts that were simply not in evidence.[46]
[106] The trial judge should not have allowed the prosecution to invite the jury to infer that the appellant may have pressured Ms. Chandler on July 4, 2018. The general instruction explaining the difference between inference and speculation was insufficient.
[107] That said, this raises the question of whether a Soobrian instruction should have been given.[47]
[108] The applicable principles were summarized by Paciocco J.A. in Tenthorey:
[103] Proof that a witness lied to protect the accused cannot properly be treated as proof that the accused encouraged or directed the witness to do so, absent an evidentiary foundation for a finding of collusion. It is therefore improper for the Crown to call a witness who is expected to testify favourably to the accused and then impeach that witness in an effort to discredit the defence by inviting an unsupported inference that the accused was complicit in the false testimony the witness provided: Soobrian, at p. 216; R. v. Figliola (No. 1), 2011 ONCA 457, 105 O.R. (3d) 641, at para. 45. If this is the Crown’s purpose, the trial judge should exercise their discretion to prohibit the impeachment from occurring: R. v. Figliola (No. 2), 2018 ONCA 578, 141 O.R. (3d) 662, at paras. 52 and 58.
[104] If the Crown does impeach its own witness without foundation for this improper purpose, the trial judge must generally give a ‘Soobrian limiting instruction’ to prevent the jury from misusing the impeachment to draw an adverse inference against the defence that the accused is also a liar, or has acted to hide their guilt: Soobrian, at p. 219; Figliola (No. 1), at paras. 38 and 61-63.
[105] Even where the Crown calls the witness for a proper purpose, if the Crown ultimately impeaches its witness and “strays into impermissible Soobrian territory”, a Soobrian limiting instruction will generally be required: Figliola (No. 1), at paras. 61-62. This will occur where the impeachment, whether wittingly or not, is conducted in a manner that has created a “real risk that the jury would misuse their rejection of [the witness’s] evidence” to discredit the defence: R. v. Figliola (No. 2), at paras. 45-46, 52 and 58.[48]
[Emphasis added]
[109] Although the prosecution called Ms. Chandler for a proper purpose, the speculative inference put forward created a real risk of the jury misusing the rejection of Ms. Chandler’s testimony to discredit the defence, all of this in the absence of a finding of collusion – a finding that was impossible in the circumstances of this case given the lack of evidence of what transpired between Ms. Chandler and the appellant that day.
[110] In essence, the speculative inference triggered the need for a Soobrian-like instruction.
