Inflammatory: Tending to arouse anger, hostility, passion…

Defence counsel must be on guard against inflammatory remarks during the Crown’s closing submissions.

Tapping into the well of negative emotions surrounding an allegation of criminal misconduct is akin to the Crown putting its thumb on the scale when trying to prove its case. The gaps in the prosecution’s case must not be bridged by anger - speculation fueled by hostility has no place in a criminal trial.

Inferences consistent with innocence may be overlooked when improper closing remarks stir up a cloudy haze of antagonistic feelings against the accused.

Useful references:

-      R. v. Vallieres,[1970] 4 C.C.C. 69 (Que. C.A.), at p. 82:

[I]n a trial before a jury, no evidence can be presented, and no 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, in accordance with cold reason …               

-      R. v. Roberts (1973), 14 C.C.C. (2d) 368 (Ont. C.A.), at p. 370:

It has been said on many occasions that the paramount duty of the Crown prosecutor is to see that justice is done, not to strive for a conviction. Certainly, he ought to refrain from language which is likely to inflame the jury and to divert the jury's attention from the real issue that they have to decide.

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