Background
Devar Francis was convicted by a Superior Court of Justice jury on January 26, 2018, of living off the avails of juvenile prostitution and exercising control over the complainant to aid, abet, or compel her to engage in prostitution.
On appeal, Francis argued that the trial Crown made improper comments in closing that rendered the trial unfair. He also argued that the trial judge misstated the evidence when summarizing the results of the search of his phone.
The Court’s Holding
The Court of Appeal dismissed the appeal. Even assuming the Crown’s closing comments could be understood as suggesting Francis had a motive to lie, the court held that, in context, they did not undermine the presumption of innocence. Trial counsel had not sought the corrective instruction Francis later said was necessary.
The court also rejected the challenge to the jury charge. The trial judge’s statement that the phone search yielded no evidence about the incidents because the phone was new and relevant-period data was missing substantially recapitulated a police witness’s evidence. The judge also put Francis’s contrary position to the jury: there was no electronic evidence connecting him to the complainant, and he testified that he had possessed the phone for a year. The judge told jurors they were to determine the evidence and were not bound by his summary.
Key Takeaways
- Closing submissions must be assessed in context when determining whether they impaired the presumption of innocence.
- The absence of a contemporaneous request for a corrective instruction supported rejecting the claimed unfairness from the Crown’s address.
- A jury-charge summary of evidence will not warrant appellate intervention where the charge fairly conveys the competing positions and leaves fact-finding to the jury.
Why It Matters
The decision illustrates the high threshold for overturning a criminal conviction based on alleged improprieties in closing submissions or an asserted misstatement of evidence in the jury charge. Appellate review considers the charge and submissions as a whole, including whether defence counsel objected or sought a corrective instruction at trial.