R. v. W.B., 2000 CanLII 5751 (ON CA)

Regina v. Batte [Indexed as: R. v. Batte]

49 O.R. (3d) 321

[2000] O.J. No. 2184

No. C22060

Court of Appeal for Ontario

McMurtry C.J.O., Doherty and Rosenberg JJ.A.

June 13, 2000

Criminal law -- Disclosure -- Counselling records in hands of third party -- Accused charged with sexual offences against DD and DSD -- Accused seeking both complainants' counselling records -- Motions judge concluding that accused satisfied "likely relevance" test for production of records to court -- Motions judge reviewing records and concluding that they could not assist in making full answer and defence and refusing to order disclosure of records to accused -- No evidence about content of records pertaining to DD -- No evidence that anything in DSD's records was directly related to accused's guilt or might demonstrate mental or emotional problems affecting her credibility or reliability -- Mere fact that DSD discussed abuse in counselling not sufficient to meet "likely relevance" test for production of records to court -- No reasonable possibility that DSD's records contained information with probative value -- Accused failed to establish that records met test of "likely relevance" for production to court -- Motions judge erring in ordering production of either complainant's counselling records to court -- Appeal against conviction dismissed.

Criminal law -- Evidence -- Admissibility -- Prior discreditable conduct -- Propensity evidence -- Accused charged with sexual offences in 1970s -- Accused arguing that complainant's conduct by accompanying him on vacation and staying with him after offences alleged to have occurred was entirely inconsistent with abuse -- Crown permitted to lead evidence of sexual abuse during these periods to prevent jury from receiving misleading impression of complainants' relationship with accused -- Evidence admissible notwithstanding prior bad acts outside scope of indictment -- Appeal dismissed.

Criminal law -- Charge to jury -- Prior discreditable conduct -- Propensity reasoning -- Accused charged with sexual offences in 1970s -- Accused arguing that complainant's conduct by accompanying him on vacation and staying with him after offences alleged to have occurred was entirely inconsistent with abuse -- Crown permitted to lead evidence of sexual abuse during these periods to prevent jury from receiving misleading impression of relationship with accused -- Jury instructed that evidence of other abuse was relevant solely to complainants' credibility -- Focused propensity reasoning permissible when probative force of evidence regarding disposition is so strong it amounts to circumstantial evidence that accused committed offence charged -- Additional instructions which set out both proper and improper uses of very strong disposition evidence would not have enured to accused's benefit -- Appeal dismissed.

Criminal law -- Charge to jury -- Credibility -- Motive to fabricate allegations -- Accused charged with sexual offences alleged to have occurred many years before complainants disclosed offences -- Trial judge posing hypothetical question to jury regarding why complainants would fabricate allegations -- Accused explicitly alleged complainants had motive to lie -- Issue of complainants' credibility and motives squarely before jury -- Jury properly instructed that onus and burden of proof rested solely with Crown -- Appeal from conviction dismissed.

Criminal law -- Evidence -- Repealed sexual offences -- "Recent complaint" -- Offences alleged to have occurred prior to repeal of provisions regarding recent complaint -- Accused arguing that trial judge erred by failing to instruct jury that it could draw adverse inference from failure of complainants to make recent complaint -- Common law overturned even if statute did not abrogate common law permitting that adverse inference could be drawn when complainant failed to raise "hue and cry" -- Overturned and repealed law regarding recent complaint should not be applied in cases of historical sexual allegations -- Appeal from conviction dismissed.

Criminal law -- Sentencing -- Repeated sexual offences -- Accused convicted of repeated rapes and indecent assaults committed in 1979 -- Young teenage complainants in very vulnerable position -- Accused in position of trust -- Accused otherwise considered "model citizen" -- Accused 60 when sentenced and suffering serious health problems after sentence -- Trial judge imposing total sentence of four years' imprisonment -- Denunciatory sentence required despite mitigating factors -- Sentence imposed well within range -- Appeal from sentence dismissed.

The accused was charged with sexually assaulting two sisters, DD and DSD, in the late 1970s when the complainants were young teenagers. The trial turned on the credibility of the complainants. Prior to trial, the accused brought a motion for the production of records in the possession of a family violence treatment centre pertaining to counselling sessions involving the two complainants. The motions judge proceeded with a two-step inquiry. He held that the accused had demonstrated that the records were likely relevant to a fact in issue and ordered that they be produced to him for review. After reviewing the records, he held that disclosure to the accused could not assist in making full answer and defence. He declined to order production of the records. The accused did not testify at trial. It was the position of the defence that none of the alleged abuse occurred. The defence relied on the conduct of the complainants throughout their long association with the accused and argued that, as a matter of logic and common sense, that conduct was inconsistent with their claim that they were sexually abused in 1979. The trial judge admitted evidence of sexual conduct between the accused and the complainants which was not encompassed by the indictment; specifically, evidence that the accused sexually abused the complainants during a trip to the Bahamas and when they went to live with him in New Brunswick in 1980. The accused was convicted and was sentenced to four years' imprisonment. He appealed both conviction and sentence.

Held, the appeal should be dismissed.

The test for the disclosure of confidential records in the hands of third parties is now governed by the two-stage process first set out in R. v. O'Connor and later incorporated into the Criminal Code, R.S.C. 1985, c. C-46. The first stage of the process, that of production of the records to the motions judge, requires that the accused establish that the records sought are "likely relevant" to a fact in issue such as the witness' credibility or competence to testify. The accused cannot meet this onus by relying on speculation or stereotypical assumptions. If the test for the production of the records is met then the motions judge must review the records to determine if they should be ordered disclosed to the accused. The motions judge erred by failing to distinguish between the records of the two complainants when determining their potential relevance. Given the complete absence of evidence on the motion about the contents of the records pertaining to DD, the motions judge erred in holding the accused met the test to produce DD's records to the court.

With respect to DSD's records, there was evidence that she discussed the abuse during her counselling sessions including her feelings about the accused and her reasons for delaying her disclosure of the abuse. However, it is important to note that the accused must establish an evidentiary foundation in support of his argument that the records are "likely relevant". There was no evidence that the records relating to DSD had any direct relevance to the question of whether the accused committed the acts alleged against him. There was also no evidence that the counselling process precipitated or contributed to the complainant's decision to go to the police or that it played any role in reviving, refreshing or shaping her memory. There was no evidence that she suffered from any emotional or mental problem which could have any impact on her reliability or veracity. Where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant's credibility, those records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value. It will not suffice to demonstrate no more than that the record contained a statement referable to a subject-matter which would be relevant to the complainant's credibility. The mere fact that a witness has said something in the past about a subject-matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance and does not raise a reasonable possibility that the complainant's statement will have some probative value in the assessment of her credibility. On the record produced for the trial judge, the accused did not establish the likely relevance of either of the complainants' records. The records should not have been produced to the trial judge, much less disclosed to the accused .

The trial judge did not err in admitting evidence of the accused's sexual abuse of the complainants at places and times not encompassed within the indictment. Defence counsel at trial argued that the complainants' willingness to go to the Bahamas and New Brunswick with the accused belied any suggestion that they had been abused by him during the time frame covered by the indictment. The long-term relationship between the accused and the complainants was a mainstay of the defence position at trial. If the defence chose to rely on evidence of the Bahamas trip and the New Brunswick evidence to support its position that the relationship was entirely inconsistent with any abuse during the relevant time frame, the complainants had to be allowed to describe the events which occurred in those places and shed light on the nature of their relationship with the accused. Evidence of discreditable conduct by an accused is admissible if its probative value to a fact in issue outweighs its potential prejudicial effect.

The trial judge did not err in failing to instruct the jury that the Bahamas and New Brunswick evidence could not be used as circumstantial evidence that the accused committed the offences charged in the indictment and that they could not use the evidence to infer that the accused was the type of person who was disposed to commit the crimes alleged against him. While a jury must never convict based on a finding that an accused engaged in misconduct other than that alleged, and must never convict based on an assessment that the accused is a bad person, the criminal law's resistance to propensity reasoning is not absolute. There will be situations in which the probative force of propensity reasoning is so strong that it overcomes the potential prejudice and cannot be ignored if the truth of the allegation is to be determined. The probative force of propensity reasoning reaches that level where the evidence, if accepted, suggests a strong disposition to do the very act alleged in the indictment. The probative potential of propensity reasoning will be highest where the discreditable conduct is temporally connected to the allegations in the indictment and involves repeated acts of the same kind with the same complainant as those alleged in the indictment. The evidence of propensity in this case was so strong that it had a permissible, focused use to show that the accused had a disposition toward committing the kind of acts alleged in the indictment. If accepted, the evidence of the accused's propensity established that he consistently, over a long period of time, extracted sexual favours from the complainants while they were under his control, in return for benefits he bestowed on them. Thus, had the jury been instructed against using the propensity evidence to convict the accused on the basis that as he was a bad person he was more likely to have committed the offence, they also should have instructed as to the limited, permissible use of the propensity evidence. Overall, these additional instructions could not hav e benefited the accused.

The trial judge did not err in instructing the jury that it could ask itself why the complainants would fabricate the allegations against the accused and subject themselves to the rigours of the trial process. It was central to the defence position at trial that the complainants had developed a strong hatred of the accused and that this hatred motivated them to falsely accuse him. The question of whether the complainants had a motive to falsely accuse the accused and, if so, how that should affect their credibility, was squarely before the jury. The absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility. What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant had a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth.

The trial judge did not err in failing to instruct the jury that the complainants' failure to make a timely complaint could be used by it to discredit their evidence. There was no suggestion at trial that such an instruction should be given. The rules relating to evidence of recent complaint in sexual assault cases were abrogated by 1983 amendments to the Criminal Code. The transitional provisions contained in the amendments did not preserve the doctrine of recent complaint for offences allegedly committed before the coming into force of the amendments. The courts, as the custodians of the common law of evidence, should follow Parliament's lead and abrogate the common law doctrine of recent complaint in cases not reached by the statutory abrogation of the rule. The doctrine rests on stereotypical assumptions that have no basis in fact. No principled basis for preserving the doctrine in relation to pre-amendment offences exists.

The offences were very serious and were committed repeatedly over several months against young and very vulnerable victims. A denunciatory sentence was fully justified. The sentence imposed by the trial judge was well within the appropriate range for serious sexual offences committed against children by persons in a position of trust.

APPEAL from conviction for sexual assault and from sentence.

R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, 58 B.C.L.R. (3d) 18, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1; R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38 (C.A.), consd Other cases referred to R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, 73 Alta. L.R. (2d) 1, 107 N.R. 241, [1990] 3 W.W.R. 385, 55 C.C.C. (3d) 1, 76 C.R. (3d) 1; R. v. Cuerrier, 1998 796 (SCC), [1998] 2 S.C.R. 371, 57 B.C.L.R. (3d) 42, 162 D.L.R. (4th) 513, 229 N.R. 279, [1999] 4 W.W.R. 1, 127 C.C.C. (3d) 1, 18 C.R. (5th) 1; R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, 39 B.C.L.R. (2d) 273, 97 N.R. 321, [1989] 6 W.W.R. 501, 50 C.C.C. (3d) 142, 71 C.R. (3d) 1 (sub nom. R. v. L.E.D.); R. v. E. (A.W.), 1993 65 (SCC), [1993] 3 S.C.R. 155, 12 Alta. L.R. (3d) 1, 156 N.R. 321, 83 C.C.C. (3d) 462, 23 C.R. (4th) 357; R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, 169 D.L.R. (4th) 639, 132 C.C.C. (3d) 97, 23 C.R. (5th) 37 (C.A.); R. v. H. (W.W.) (1998), 1998 5432 (PE SCAD), 158 Nfld. & P.E.I.R. 14, 490 A.P.R. 14 (P.E.I.C.A.); R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, 14 Alta. L.R. (3d) 1, 86 C.C.C. (3d) 97, 25 C.R. (4th) 137; R. v. Kribs, 1960 7 (SCC), [1960] S.C.R. 400, 127 C.C.C. 1, 33 C.R. 57; R. v. M. (B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1, 130 C.C.C. (3d) 353, 21 C.R. (5th) 324 (C.A.); R. v. M. (P.S.) (1992), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.); R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 75 Alta. L.R. (3d) 1, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)); R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, affg (1994), 1994 6415 (BC CA), 20 C.R.R. (2d) 212, 89 C.C.C. (3d) 109, 29 C.R. (4th) 40 (B.C.C.A.), supp. reasons 1994 8746 (BC CA), 90 C.C.C. (3d) 257, 30 C.R. (4th) 55 (B.C.C.A.); R. v. P. (H.P.) (1996), 1996 17933 (MB CA), 112 C.C.C. (3d) 140 (Man. C.A.); R. v. R. (A.) (1994), 1994 4524 (MB CA), 92 Man. R. (2d) 183, 61 W.A.C. 183, 88 C.C.C. (3d) 184 (C.A.); R. v. Timm, 1981 207 (SCC), [1981] 2 S.C.R. 315, 124 D.L.R. (3d) 582, 37 N.R. 204, [1981] 5 W.W.R. 577, 59 C.C.C. (2d) 396, 21 C.R. (3d) 209; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, 1137 N.R. 214, 74 C.C.C. (3d) 134, 13 C.R. (4th) 257; R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161, 108 C.C.C. (3d) 310, 50 C.R. (4th) 245 (C.A.) Statutes referred to An Act to Amend the Criminal Code in relation to seuxal offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, 1980-81-82-83, c. 125, s. 33 Criminal Code, R.S.C. 1970, c. C-34, s. 246.5 (en. 1980-81-82-83, c. 125, s. 19) Criminal Code, R.S.C. 1985, c. C-46 (am. 1997, c. 30, s. 1), ss. 278.3(4), 278.4(2), 278.5-278.7, 486(3) Interpretation Act, R.S.C. 1985, c. I-21, s. 43 Authorities referred to Delisle, "Similar Facts: Here We Go Again" (1999), 20 C.R. (5th) 38, at pp. 41-42 Lempert and Saltzburg, A Modern Approach to Evidence, 2nd ed. (West Publishing Co., 1983), pp. 219, 226-27, 229-30 Maric, "Similar Fact Evidence: Preferring B. (L.) to Arp" (1999), 23 C.R. (5th) 57 McCormick on Evidence, 5th ed., pp. 658, 665-66, 686-87 McWilliams, Canadian Criminal Evidence, para. 37:20530

Keith E. Wright, for appellant. Robert F. Kelly, for the Crown, respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I.

1The appellant was charged with sexual assaults involving three complainants. All of the alleged assaults occurred in the late 1970s when the complainants were young teenagers. The allegations came to the attention of the police in 1993.

2Two of the complainants were sisters (D.D. and D.S.D.). The charges involving them were ordered severed from the charges involving the third complainant, N. The Crown proceeded with the trial involving the sisters first. The jury convicted the appellant of:

-- indecently assaulting D.D. between March 1, 1979 and July 31, 1979;

-- raping D.D. between April 1, 1979 and October 31, 1979; and

-- raping D.S.D. between June 29, 1979 and October 31, 1979. [See Note 1 at end of document]

3The trial judge imposed a total sentence of 4 years.

4Subsequent to the appellant's conviction and sentencing on the charges involving the sisters, and while this appeal was pending, the Crown proceeded with the charges involving N. The jury convicted the appellant of one count of indecent assault and the trial judge imposed a 21-month concurrent sentence. [See Note 2 at end of document]

5The appellant appealed all of his convictions and sentences. The appeals were heard together.

6At the conclusion of oral argument of the appeals, the court requested further written submissions on one ground of appeal (the refusal to order production of the complainants' confidential records). At the request of counsel for the appellant, the written submissions were expanded to include a new ground of appeal (alleged non-direction on the absence of a timely complaint by any of the complainants). The written submissions were delivered to the panel on January 31, 2000.

7For the reasons authored by Rosenberg J.A. (released with these reasons), the court has allowed the appeal from the conviction relating to the alleged assault on N., quashed that conviction and ordered a stay of proceedings. The court concluded that the appellant was denied his constitutional right to a trial within a reasonable time.

8These reasons address the grounds of appeal arising out of the trial involving the allegations made by D.D. and D.S.D. That trial was completed some 26 months before the trial involving the allegations made by N. and there is no s. 11(b) Charter claim advanced by the appellant on this appeal. [See Note 3 at end of document]

II.

9The trial turned on the credibility of the complainants. The Crown's case rested almost entirely on their evidence. They described how in March 1979 they had agreed to do work at the appellant's farm in exchange for the opportunity to ride his horses. Both complainants had a strong interest in horses. They were 13 and one-half years old at the time. The complainants testified that the appellant began to sexually assault them almost from the outset of their involvement with him. The abuse escalated and persisted throughout the period described in the indictment. The sisters also testified that despite this abuse, they continued to return to the appellant's farm, stayed with him during the summer of 1979, went on a vacation with him in the fall of 1979, and eventually moved to New Brunswick to be with him in 1980.

10The appellant chose not to testify. It was the position of the defence that none of the alleged abuse occurred. The defence relied on the conduct of the complainants throughout their long association with the appellant and argued that, as a matter of logic and common sense, that conduct was inconsistent with their claim that they were sexually abused in 1979. The defence also argued that the complainants had not shown any of the usual signs associated with sexual abuse and that the complainants' parents, with whom they were very close, had noticed nothing untoward at any time during the complainants' long association with the appellant. The defence contended that for some reason (two possibilities were suggested), the complainants had come to hate the appellant and had set out to "get him" by making false allegations in 1993, more than ten years after the alleged abuse had occurred.

11The jury's verdicts indicate that it accepted the evidence of the complainants and, despite the arguments forcefully advanced on behalf of the appellant, had no reasonable doubt as to his guilt.

12The appellant advanced eight grounds of appeal on the appeal from conviction. I will address the five grounds on which the court required submissions from the Crown:

-- Did the trial judge err in refusing to order production of the complainants' therapeutic records?

-- Did the trial judge err in admitting evidence of sexual conduct between the appellant and the complainants not encompassed by the indictment? If the evidence was properly admissible, did the trial judge fail to give a proper limiting instruction?

-- Did the trial judge err in instructing the jury that it could ask itself why the complainants would make the allegations they did if they were not true?

-- Did the trial judge, in his supplementary charge to the jury, effectively deliver a reply for the Crown to arguments advanced by the defence, and thereby cause a miscarriage of justice?

-- Did the trial judge err in failing to instruct the jury that there was no evidence that either complainant had complained of the alleged sexual assaults in a timely fashion and that their failure to do so should count against their credibility?

III.

13D.D., her sister D.S.D. and a brother were all born on October 31, 1965. Both sisters were interested in horses from a very early age. D.D. worked for neighbours on their farms in exchange for riding privileges from the time she was 12 years old. She met the appellant in March 1979 while working for a neighbour. The appellant was in his early 40s and lived alone on his farm. He had a full time job in the city and did not have time to do all of the chores around the farm. He offered to let D.D. and a friend ride his horses if they would do chores at the farm. D.D. was happy to get the opportunity to do more riding and accepted the appellant's offer. She asked if her sister, D.S.D., could join her. The appellant agreed.

14D.D., her friend and D.S.D. began going to the appellant's farm almost every weekend. They did chores, rode the appellant's horses and earned some money by giving riding lessons. D.D. testified that from the outset the appellant would touch her in inappropriate ways when he was alone with her and tell her how much he needed her. The appellant, who was usually very nice, would become very insistent when groping D.D. She had no previous sexual experience and was very shy. The touching escalated from fondling over D.D.'s clothing to reaching underneath her clothing and touching her breasts and vagina. Despite these incidents, D.D. returned to the appellant's farm on a weekly basis.

15D.D. described an incident in April 1979 during a barbecue held at the appellant's farm. D.D. was in the house and her sister and friend were outside with the appellant. He came inside, grabbed D.D. and pushed against her. He told her that he loved her and would marry her when she turned 16. He kissed her and rubbed his crotch area against her vaginal area until he ejaculated. He was fully clothed. The appellant changed his pants and went back outside to the barbecue. In her testimony, D.S.D. recalled the barbecue and that the appellant had changed his pants during the barbecue. D.S.D. had made no reference to the appellant changing his pants in her statement to the police. She first provided this detail in a statement to the Crown shortly before the trial. Counsel for the appellant at trial pointed to this as one example of the complainants' altering their evidence so that the evidence of one would be consistent with and support the evidence of the other.

16D.D. testified that a short time after the barbecue incident, she and her sister went to a drive-in movie with the appellant. He told them about his deceased wife and said that the girls looked like her. He talked about how difficult his wife's death had been and the problems he had experienced raising young children by himself. The complainants felt sorry for him. After the movie the appellant drove the complainants home. D.S.D. left the car and went inside, but D.D. remained in the car with the appellant. He lowered his shorts, forced her to rub his erect penis and then ejaculated.

17In late May or early June 1979, the sisters stayed at the appellant's home overnight for the first time. This would become routine. On this first occasion, the girls slept in the same bedroom. The appellant gave them alcohol. Neither girl had consumed alcohol before that night. D.S.D. went to bed first. After she was in bed, the appellant attacked and raped D.D. He forced himself on her despite her resistance, telling her that he had had a vasectomy. D.D. had never had sexual intercourse before and she told the appellant that it hurt very much. He would not stop or slow down, but told her "it is supposed to hurt, it's your first time." The next morning, the appellant was in a very good mood and asked D.D., "How was it last night?"

18D.D. indicated that the appellant raped her on one other occasion prior to the end of the school year in 1979. She said that when the appellant wanted sexual activity he would become very forceful and insistent. As soon as the sex was over, he would be very nice to her.

19After school finished in June 1979, D.D. and her sister began to stay at the appellant's residence most of the time. They attended to the horses, broke horses for a neighbour and gave riding lessons to students. They enjoyed all of these activities very much.

20The appellant had the sisters sleep in separate bedrooms. According to D.D., he came into her room four or five times a week at night and raped her. These episodes lasted about 15 minutes. The appellant told her that she should not tell anyone about their sexual activities.

21After the sisters returned to school in September 1979, they continued to live part-time at the appellant's farm. When they turned 14 on October 31, 1979, the appellant gave them each an engraved watch.

22In September or October 1979, the appellant told the sisters that he and a group of his neighbours were going to the Bahamas. The appellant offered to take the sisters with him on the holiday. They wanted to go but did not think that their parents would allow it. Much to their surprise, the appellant persuaded their parents to let him take the girls to the Bahamas. According to Carol N., who had organized the trip, the appellant and the two sisters kept largely to themselves while in the Bahamas.

23D.D. said that she was raped on three occasions by the appellant in the Bahamas. She said that apart from the rapes, the trip was "wonderful". The jury were shown pictures taken on the trip. The sisters appeared to be having a good time.

24After the appellant and the sisters returned from the Bahamas, the sisters continued to live with the appellant. In December 1979, the appellant's employer transferred him to New Brunswick and the girls returned to their parents' home. In early 1980, the appellant bought a farm in New Brunswick and invited the girls to visit him. He described the farm in glowing terms and told the girls that he had a pair of Palomino horses for them. He had also made arrangements for them to go to school there and had described himself as the girls' guardian.

25The complainants wanted to go to New Brunswick. They went to visit in March of 1980 but ended up enrolling in school and staying with the appellant. Each girl had her own bedroom in the appellant's home in New Brunswick. No one but the appellant and the sisters lived in the house. D.S.D. remained with the appellant in New Brunswick until March 1981. D.D. stayed with him until the fall of 1981 and returned the following year.

26D.D. testified that while she was living with the appellant in New Brunswick, she was raped on a regular basis by him. He would come to her room at night a few times a week and demand that she submit to sexual intercourse.

27One night in about December 1980, D.D. met her sister in the hallway outside of the appellant's bedroom. D.S.D. asked D.D. if the appellant was "doing things" to her and D.D. confirmed that he was. D.S.D. refused to believe her sister, so D.D. said she would prove it. D.D. then went into the appellant's room and had sexual intercourse with him while D.S.D. listened at the door. D.S.D. became very angry and confronted the appellant who in turn became angry with the sisters for deceiving him. According to both sisters, neither had any idea that the other was engaging in sexual activity with the appellant before their chance encounter in the hallway.

28D.S.D. wanted to return home to Ontario immediately, but ended up staying in New Brunswick until March 1981 when she returned to Ontario with her sister, the appellant and a friend. The appellant was returning to Ontario to pick up some horses. D.S.D. remained with her parents in Ontario, but after a short visit, D.D. returned to New Brunswick with the appellant. She remained there until the late summer of 1981. During that time, the appellant had sexual intercourse with her about three or four times a week. D.D. returned home to live with her parents in the fall of 1981 because she did not like the school in New Brunswick. She returned to New Brunswick to live with the appellant in the summer of 1982 and remained there until the fall of 1984 when she returned to her parents' home. D.S.D. and her parents visited D.D. and the appellant in the summer of 1983 and 1984.

29D.D. was married in October 1985. She invited the appellant to her wedding. She explained that her mother suggested that the appellant should be invited. D.D. did not want to tell her mother about the sexual abuse and could not offer any other reason why the appellant should not attend her wedding. D.D. also visited the appellant in New Brunswick on her honeymoon. In 1987, she and her husband purchased a horse from the appellant for their child. D.D. said that there was an argument over the soundness of the horse, but denied that her decision to go to the police had anything to do with her dissatisfaction with the horse.

30D.D. said that she resisted the appellant's sexual advances at first and told him that she did not want to have sex with him. She said that she soon realized that her resistance was useless. He simply would not stop. She even begged him to take some pills so that he would not want to have sex with her.

31D.D. was asked why she continued to visit the appellant, live with him and return to him on so many occasions over so many years if in fact he was sexually abusing her on an almost daily basis. She said she had a lot of fun at the farm and she especially enjoyed riding the horses. She also thought that her sister was having fun and she did not want to spoil her sister's good time by revealing the appellant's abuse. She said that apart from the sexual abuse, the appellant was very kind, generous and treated her very well.

32D.S.D. confirmed that she, her sister and a friend had begun to work regularly at the appellant's farm in March 1979. She testified about the barbecue incident and she recalled that the appellant and D.D. were in the house while she and their friend were outside. When the appellant came out of the house he was wearing different pants. [See Note 4 at end of document] She also recalled the trip to the drive-in movie and the appellant's references to his deceased wife. D.S.D. said she went into the house before D.D., who stayed in the car with the appellant.

33D.S.D. testified that about one month after she started to work on the farm, the appellant came up behind her and put his arms around her. She ducked away and rushed out of the room. She said that this and several other "little incidents" involving the appellant upset her. He was always "bugging" her and telling her that he liked her very much. She said that she made it clear to him that she did not want him to touch her.

34D.S.D. recalled the evening when she and her sister first stayed overnight at the appellant's farm. She testified that he gave them alcohol and that she went to bed before her sister. When her sister came to bed, she was stumbling and speaking incoherently.

35According to D.S.D., she and her sister stayed overnight at the appellant's farm on a regular basis in the summer of 1979. Each sister had her own bedroom. She recalled an evening in July 1979 when the appellant was banging on her bedroom door begging her to let him in. He said, "I want to hug you. I'll treat you like a queen." D.S.D. held the door closed and told the appellant she wanted no part of any contact with him other than as a friend. D.S.D. described the appellant as desperate. He eventually went away. Like her sister, D.S.D. was very shy and had no experience in sexual matters.

36A few days after the incident at the bedroom door, D.S.D. woke in the middle of the night to find the appellant on top of her having sexual intercourse with her. She was in shock. She felt she could not resist. After the appellant left her bedroom, D.S.D. felt numb. She could not believe what he had done. This was her first sexual experience.

37After the first act of sexual intercourse, the appellant forced himself on D.S.D. once or twice a week. He would approach her when D.D. was not around and tell her that he "needed her". D.S.D. acknowledged that she did not physically resist the appellant on these occasions. She felt that she had no choice but to comply with his demands. He was very insistent and referred to his penis "as a person with a mind of its own."

38D.S.D. also recalled the trip to the Bahamas in the fall of 1979. She and her sister stayed in a suite with the appellant. She described many activities she enjoyed while in the Bahamas, but also said that on one occasion the appellant took her out on the beach and raped her.

39D.S.D. said that the sexual intercourse and other sexual activity between her and the appellant continued after the return from the Bahamas and the move to New Brunswick. She did not know that her sister was also being sexually assaulted by the appellant. She questioned the appellant about her sister on one occasion and he made a flippant reply indicating he was not physically capable of carrying on a sexual relationship with both sisters.

40D.S.D. acknowledged that she was very anxious to go to New Brunswick and live with the appellant on his farm with the horses. She even threatened to run away when she was 16 if her parents did not allow her to go. According to D.S.D., she and the appellant engaged in various kinds of sexual activity after she moved to the farm in New Brunswick.

41Like her sister, D.S.D. testified that she and D.D. met in the hallway outside of the appellant's bedroom at the farm in New Brunswick in December 1980. This was the first time that either realized that the other was being abused by the appellant. D.S.D. described how her sister went into the appellant's bedroom and had sexual intercourse with him while D.S.D. listened at the door. She did so to prove to D.S.D. that the appellant was abusing both of them. D.S.D. became very angry, opened the door and began yelling at the appellant. He in turn became angry because he had been tricked by the sisters. D.S.D. said that after the confrontation in the appellant's bedroom, her relationship with the appellant and with her sister changed. The appellant became much closer to D.D. D.S.D. argued constantly with both of them. According to her, she wanted to come home immediately, but had to wait until March 1981 when the appellant was returning to Ontario. She also said that she had sexual intercourse with the appe llant at his request on one more occasion before returning to Ontario.

42D.S.D. had a chance meeting with the appellant at her mother's home in 1991. Shortly afterwards, she wrote to the appellant and warned him to stay away from her sister and her mother.

43D.S.D. was asked to explain how she could spend so much time with the appellant, go on a vacation with him and even insist that she be allowed to move to New Brunswick to live with him if in fact she was regularly sexually abused by him. D.S.D. said that until her last few months in New Brunswick, the appellant treated her very well, apart from the sexual abuse. There were a lot of fun things to do on the farms and she enjoyed riding the horses and making money giving riding lessons. D.S.D. also thought that her sister was having a very good time and she did not want to spoil that for her sister by exposing the appellant. D.S.D said she was afraid to tell her parents.

44The complainants' mother described her daughters as quiet, obedient girls who were very close to each other. She also said that the entire family was close and that she kept a careful eye on her daughters. She testified that she allowed her daughters to go to work for the appellant, to stay at his farm overnight, to move in with him in the summer of 1979, to go to the Bahamas in the fall of 1979, and to move to New Brunswick in early 1980 to live with the appellant. She testified that while her daughters were living with the appellant in New Brunswick, she would speak to them on a regular basis and that she visited them on two occasions. She did not notice anything suspicious during the time when her daughters were working for or living with the appellant. She first became aware of the alleged abuse in 1991.

45There was no evidence called by the defence.

IV.

Did the trial judge err in refusing to order production of the complainants' therapeutic records?

46Prior to trial, the appellant brought a motion for an order compelling production of certain records in the possession of the Family Violence Treatment Centre in Orangeville, Ontario. The records pertained to various counselling sessions involving the two complainants. [See Note 5 at end of document]

47The motion was brought in 1994 before the decision of the Supreme Court of Canada in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, in which the court set out in detail the procedures and principles governing production of a complainant's confidential records held by a third party. Those procedures and principles were supplanted in 1997 by Parliament (S.C. 1997, c. 30, s. 1).

48The motion judge followed the procedures and principles set down by the British Columbia Court of Appeal in R. v. O'Connor (1994), 1994 8746 (BC CA), 90 C.C.C. (3d) 257, 30 C.R. (4th) 55. In keeping with that authority, he proceeded with a two-step inquiry. The motion judge held that the appellant had demonstrated that the records were likely relevant to a fact in issue and ordered that the records be produced to him for review. After reviewing the records, the motion judge held that disclosure to the appellant could not assist in making full answer and defence. He found it unnecessary to balance the complainant's privacy interests against the appellant's right to make full answer and defence, and declined to order disclosure to the appellant.

49Mr. Wright submits that the motion judge correctly concluded that the records were likely relevant but erred in failing to order disclosure to the appellant. By way of alternative submission, Mr. Wright argues that the trial judge should have ordered those in possession of the records to provide the appellant with an inventory of the contents of the records so that he could more effectively address the potential relevance of the records. Mr. Wright also submits that at the second stage of the inquiry, the motion judge should have provided the appellant with a summary of the contents of the records so that he could make effective submissions as to their significance to his ability to make full answer and defence.

50The Crown maintains that the motion judge was correct in refusing production and submits that neither an inventory, nor a judicial summary of the records was requested or necessary.

51Crown counsel further submits that even if the motion judge erred in applying the common law as it stood at the time of the motion, that error does not warrant the directing of a new trial. It is Crown counsel's position that if a new trial were ordered, the appellant's motion for disclosure would be governed by the present statutory scheme. Crown counsel contends that under that scheme the appellant could not possibly obtain production of the records. He submits, therefore, that even if the motion judge misapplied the then governing principles, that error resulted in no substantial wrong or miscarriage of justice.

52Mr. Wright agrees that if a new trial were ordered, the statutory scheme would govern. He submits, however, that it would be unfair to test the application for disclosure against rules which were non-existent when the application was made. He submits that if the trial judge erred in the application of the law as it stood at the time of the application, the effect of the statutory provisions can only be properly determined at a new trial where the appellant has an opportunity to address the issue raised by the legislation.

53The law governing the appellant's motion for disclosure of the complainants' confidential records was uncertain when the motion was decided and has undergone significant changes since then. There are, however, three features of the applicable law that have not changed and that are dispositive of this ground of appeal:

-- An application for production of confidential records must be approached in two stages. First, the judge must decide whether to order production to the court. If the judge orders production, he or she must examine the records and then decide whether to order disclosure to the defence: R. v. O'Connor, supra, at p. 261 (B.C.C.A.); R. v. O'Connor, supra, pp. 435-36 S.C.R., at pp. 18-19 C.C.C.; Criminal Code ss. 278.5-278.7.

-- The likely relevance of the records to an issue at trial, a witness's credibility, or the competence of a witness to testify is a prerequisite to an order compelling production of the records to the judge: R. v. O'Connor, supra, at pp. 261-65 (B.C.C.A.); R. v. O'Connor, supra, per majority, at p. 436 S.C.R., pp. 19-20 C.C.C., per dissent at pp. 495-501 S.C.R., pp. 62-67 C.C.C.; Criminal Code s. 278.5(1)(b).5

-- The onus is on the accused to establish likely relevance. In doing so, the accused cannot rely on speculative assertions or stereotypical assumptions: R. v. O'Connor, supra, at pp. 261-62, 265-67 C.C.C. (B.C.C.A.); R. v. O'Connor, supra, per majority at p. 435 S.C.R., p. 18 C.C.C., per dissent at pp. 495-98 S.C.R., pp. 63-65 C.C.C.; Criminal Code ss. 278.3(4), 278.5(1)(b).

54The appellant attempted to satisfy this onus of demonstrating likely relevance with the affidavit of counsel associated with trial counsel, a transcript of the preliminary inquiry into these allegations and the testimony of Ms. Stacey Neumin, the therapist who counselled the complainants at the treatment centre in Orangeville and prepared the records in question.

55The complainants testified at the preliminary inquiry that they discussed going to the police for some time before they finally did so in February 1993. They were concerned that the appellant might take advantage of other young girls. The complainants eventually went to the police in February 1993 and gave statements to them. The police investigated the allegations and laid charges against the appellant in May 1993.

56On cross-examination at the preliminary inquiry, the complainants testified that they had not been to any doctor or any social service agency in connection with the alleged abuse by the appellant prior to going to the police. The complainants first sought counselling on April 30, 1993, some two months after giving statements to the police. Their first counselling session was in late July 1993, some five months after they went to the police and two months after the charges had been laid.

57Ms. Neumin testified that she had some 20 counselling sessions with D.S.D. She was not asked when any of these sessions occurred and she was not asked when the last session had occurred. There was no evidence as to how many sessions D.D. attended. Nor was there any evidence indicating whether the complainants attended the counselling sessions individually or together.

58The only evidence of the nature of the records came from Ms. Stacey Neumin. She acknowledged that in the course of the sessions, D.S.D. had discussed what the appellant did to her, her feelings towards the appellant and the reasons she had not disclosed the abuse before she did. Ms. Neumin was not asked what topics she discussed with D.D. and I can find no evidence in the record of what D.D. and Ms. Neumin discussed in their counselling sessions.

59Ms. Neumin explained that the records consisted of her notes of the counselling sessions. These notes were prepared during and after each session. They were not intended as a "deadly accurate" summary of what was said in the counselling sessions and were not prepared with a view to testing the accuracy or consistency of the complainants' recollection. Ms. Neumin prepared the notes to assist her in subsequent counselling sessions. In making the notes, Ms. Neumin was not concentrating on recording the exact words said to her, but rather on the "subtext with respect to feelings". She did say, however, that there were some exact quotes in the notes. Ms. Neumin referred to the notes as a "summary of my understanding of the sessions we have had" and as her attempt to "summarize the scenes, sort of identify for myself my understanding of the words and phrases that my clients will use." Ms. Neumin agreed with the trial judge's suggestion that the notes were her interpretation of what the complainants had said. The complainants did not review the notes at any time and had no opportunity to make any changes in the notes.

60In concluding that the records passed the likely relevant threshold, the motion judge said:

Relevance, in my view, must be given a broad interpretation in the context of this kind of application. Relevance, in my view, means that which is logically probative or has logical probative value of facts in issue.

61The motion judge also identified the credibility of the complainants as a central issue in the trial. He concluded that the records were likely to contain information that was relevant to the credibility of the complainants.

62Mr. Wright resists any attempt to review the decision that the records met the likely relevant threshold. He submits that the Crown has not suggested that the motion judge erred in so holding and that it would be unfair to require the appellant to cross that threshold again.

63I cannot accept that submission. The appellant has challenged the ruling that he is not entitled to disclosure of the confidential records. The correctness of that ruling cannot be reviewed without determining whether the appellant had established that the records were likely relevant to an issue at trial. The appellant knew that he had to establish likely relevance and that issue was fully canvassed on the motion. A review of that facet of the motion judge's ruling is necessary in order to determine whether he properly refused production of the records to the appellant. That review causes no unfairness to the appellant.

64In R. v. O'Connor, supra, at p. 436 S.C.R., p. 19 C.C.C., the majority defined "likely relevant" in these terms:

In the disclosure context, the meaning of "relevance" is expressed in terms of whether the information may be useful to the defence: [citations omitted]. In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. When we speak of relevance to "an issue at trial", we are referring not only to evidence that may be probative to the material issues in the case (i.e., the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.

(Emphasis added)

65The majority went on to stress that the likely relevance threshold, while significant, should not be overly onerous. At p. 438 S.C.R., p. 20 C.C.C., the majority describes the purpose of the threshold test in these terms:

. . . to prevent the defence from engaging in "speculative, fanciful, disruptive, unmeritorious, obstructive and time- consuming" requests for production [citation omitted].

66Given the total absence of any indication of what D.D. spoke to Ms. Neumin about in the counselling session, I fail to see how a request for the production of her confidential records could be described as anything other than "speculative". The motion judge appears to have treated the two complainants as one. He should not have done so. There was no evidence upon which he could conclude that the confidential records of D.D. were likely relevant to any issue at the trial, including her credibility.

67The records referable to D.S.D.'s counselling sessions did contain references to topics which were relevant to the issues at trial and particularly to the credibility of D.S.D. Those records contained references to the alleged abuse and to factors which could impact on D.S.D.'s credibility (e.g., her feelings towards the appellant and her reasons for delaying so long in disclosing the abuse). In determining whether Ms. Neumin's description of the records satisfied the appellant's onus of demonstrating that they were likely relevant, it is important to underscore the limits of the evidentiary basis established by the appellant.

68There was no evidence that the records had any direct relevance to the question of whether the appellant committed the acts alleged against him. By that I mean, there was no evidence that anything in the records would be admissible as a free-standing piece of evidence going to the question of whether the abuse occurred. The potential relevance or evidentiary value of the records rested in their potential to refresh the memory of D.S.D. or impeach her credibility. Clearly, Ms. Neumin's impressions of the "subtext" of the conversations and her interpretation of what D.S.D. said or meant had no relevance.

69There was also no evidence that the counselling process precipitated or contributed to D.S.D.'s decision to go to the police. The evidence was to the contrary. D.S.D. went to the police and gave them a statement some five months before she began counselling. Furthermore, there is no evidence that the counselling process played any role in reviving, refreshing or shaping the memory of D.S.D. Finally, there is no evidence that D.S.D. suffered from any emotional or mental problem which could have any impact on her reliability or veracity, and the nature of the allegations themselves did not suggest any such problems.

70The appellant's position with respect to the likely relevance of the records must come down to this. The records contained statements made by D.S.D. that referred to the alleged abuse and to matters affecting her credibility. Anything said by D.S.D. about the abuse or about a matter which could affect her credibility passes the likely relevance threshold, even absent any suggestion that the statements differ from or add anything to the complainant's statement and testimony at the preliminary hearing.

71If the likely relevance bar is that low, it serves no purpose where the records relate to counselling or treatment connected to allegations of sexual abuse. It is impossible to imagine that such records would not contain references to the alleged abuse or matters that could affect the credibility of the complainants' allegation of abuse. In my view, the mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant's credibility.

72I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant's credibility, those records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value. To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O'Connor, between relevance for the purposes of determining the Crown's disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge.

73Although I am not testing the trial judge's ruling against the present statutory scheme, that scheme does provide some support for my interpretation of the "likely relevant" standard where the records are said to go to the credibility of the complainant. Section 278.3(4) provides in part:

278.3(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(Emphasis added)

74In upholding the constitutionality of s. 278.3, in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 at pp. 741-42, 139 C.C.C. (3d) 321 at p. 380, the majority said:

The purpose and wording of s. 278.3 do not prevent an accused from relying on the assertions set out in s. 278.3(4) where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance. . . . The section requires only that the accused be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify . . .

(Emphasis added)

75The determination of likely relevance under the common law scheme requires the same approach. The mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence or information" to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value.

76The requirement that an accused be able to show that the statements contained in the record have some potential to provide added information to the accused or some potential to impeach the credibility of the complainant is not an onerous one. For example, in this case, the appellant had the initial statement given to the police by D.S.D. before she commenced therapy. He also had a transcript of her lengthy examination- in-chief and cross-examination at the preliminary inquiry taken after she commenced therapy. Had counsel shown material differences between the initial statement and the preliminary inquiry testimony, these differences coupled with the fact that the complainant spoke to a therapist about these matters between the giving of the statement and giving any evidence at the preliminary inquiry may have established that statements she made to the therapist touching on matters relevant to her credibility had potential impeachment value and were, therefore, likely relevant. Similarly, had the appellant been able to produce evidence suggesting a connection between the evidence given by the complainant at the preliminary inquiry and the sessions with her therapist, this would also have established potential impeachment value.

77It will not, however, suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would be relevant to the complainant's credibility. The mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value. In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant's statement will have some probative value in the assessment of her credibility.

78On the record produced for the motion judge, the appellant did not establish the likely relevance of the complainant's records. They should not have been produced to the judge, much less disclosed to the appellant.

79As I am satisfied that the records should not have been produced to the judge, I need not address the appellant's submission that he was entitled to judicial summaries of the records produced to the judge.

80I would also reject his submission that the trial judge should have required the custodians of the documents to provide the appellant with an inventory of the documents contained in the records. In many cases, an inventory will be helpful to all parties involved in the motion. There is, however, no rule under either the common law or statutory scheme requiring an inventory.

81The motion judge was not asked to direct that an inventory be produced to the appellant. The appellant was able to examine Ms. Neumin and obtain a broad description of the contents of the records. [See Note 7 at end of document] Nor did the motion judge make any ruling which limited counsel's ability to acquire a further description of the contents of the records if he thought it helpful. The appellant was not prejudiced by the absence of an inventory of the documents contained in the records.

Did the trial judge err in admitting evidence of the appellant's sexual abuse of the complainants at places and times not encompassed within the indictment? If the evidence was admissible, were the trial judge's instructions on that evidence adequate?

82The jury heard evidence that the appellant took the complainants to the Bahamas, with the permission of their parents, and that he raped both complainants while in the Bahamas. Although the trip took place during the time frame set out in the indictment (March 1979 - October 1979), none of the charges did, or could, allege an offence that had occurred in the Bahamas.

83The jury also heard evidence that the complainants went to live with the appellant in New Brunswick in March 1980 and stayed with him for about a year. After a brief visit with her parents, D.D. returned to New Brunswick with the appellant in March 1981 and lived with him for parts of the next three years. The jury heard evidence that the appellant sexually abused both complainants in New Brunswick. New Brunswick was also beyond the geographical ambit of the indictment and the alleged abuse in New Brunswick took place after the time frame set out in the indictment.

84When the Crown first began to lead evidence of the events in New Brunswick, the trial judge excused the jury to canvass the admissibility of that evidence and the evidence of the events in the Bahamas with counsel. He was concerned about admitting evidence of sexual misconduct which was not the subject of a charge in the indictment. Counsel agreed that the evidence was admissible. Counsel advised the trial judge that the admissibility of the evidence had been discussed at pre- trial conferences and that no objection was taken to the evidence. The evidence had also been admitted without objection in earlier proceedings that resulted in a mistrial (for unrelated reasons). Crown counsel pointed out that on the previous trial, the evidence of the events in the Bahamas and New Brunswick had been relied on by the defence. The trial judge accepted counsels' position that the evidence was admissible and immediately cautioned the jury as to its limited use.

85On appeal, Mr. Wright resiles from the position taken by counsel at trial for the appellant and contends that none of this evidence was admissible. I am somewhat uncertain as to the exact nature of his submission. Mr. Wright may be submitting that the jury should have heard nothing about events involving the appellant and the complainants that were outside of the place and dates set out in the indictment. If this is his contention, it amounts to a submission that evidence which was vital to the defence should not have been admitted. The defence at trial was that the complainants' conduct towards the appellant over many years was entirely inconsistent with their allegations of sexual abuse made some ten years after the fact. The long-term relationship between the appellant and the complainants was a mainstay of the defence position from the start to the end of the trial. Counsel argued that the complainants' willingness to go to the Bahamas with the appellant, the fun they had with him in the Bahamas, their determination to move to New Brunswick to join the appellant, and their desire to stay there for a long time, belied any suggestion that they had been abused by the appellant during the time frame covered by the indictment.

86The defence also used the complainants' evidence of the sexual activities in the Bahamas and New Brunswick for a second purpose. It argued that their evidence defied belief. For example, the defence elicited evidence from D.S.D. that she had sexual intercourse with the appellant one last time in New Brunswick before she returned home in March 1981, even though by that time she hated the appellant, was anxious to go home, and wanted nothing more to do with him or his horses. No doubt, the defence hoped that the jury would find that at least some of the complainants' evidence concerning the sexual activities in the Bahamas and New Brunswick was untrue and would conclude that the complainants' evidence going directly to the allegations in the indictment was tainted by those falsehoods and should not be believed.

87The evidence of the trip to the Bahamas and the "New Brunswick" evidence was crucial to the defence and could not have been excluded without gutting the defence.

88Alternatively, Mr. Wright may be submitting that the defence was entitled to elicit evidence of the events in the Bahamas and in New Brunswick, but that the Crown could not elicit evidence of the sexual misconduct which occurred in those venues or which was beyond the time frame in the indictment. On this submission, the jury was entitled to hear about the long-term relationship between the appellant and the complainants, and all the fun the complainants had in the Bahamas and New Brunswick, but not about the sexual abuse.

89There is no merit to that position. If the defence chose to rely on evidence of the trip to the Bahamas and the "New Brunswick" evidence to support its position that the relationship between the complainants and the appellant was entirely inconsistent with any abuse during the relevant time frame, the complainants had to be allowed to describe the events which occurred in those places and shed light on the nature of their relationship with the appellant. The defence could not choose to put a fact in issue and then argue that evidence which was probative on that issue should be excluded because it involves allegations of misconduct by the accused. The rules of evidence do not permit the accused (or the Crown) to present a one-sided version of events to the trier of fact: R. v. Mills, supra, at pp. 719-20 S.C.R., pp. 363-64 C.C.C. This jury could not hope to arrive at the truth regarding the nature of the relationship between the complainants and the appellant if the complainants' description of that relationship was censored so as to completely distort their version of the nature of that relationship.

90It is now well established that evidence of discreditable conduct [See Note 8 at end of document] by an accused is admissible if its probative value to a fact in issue outweighs its potential prejudicial effect: R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339 at p. 363 and 368-69, 129 C.C.C. (3d) 321 at pp. 340 and 344-45; R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35 at p. 42, 116 C.C.C. (3d) 481 at p. 489 (C.A.), leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 524. The position advanced by the defence at trial will be an important consideration in determining the facts in issue and will assist in assessing the potential probative value of the discreditable conduct evidence: R. v. B. (L.), supra, at pp. 68-69 O.R., p. 515 C.C.C. In this case, the defence position made the case for the admission of the accused's sexual activity with the complainants in the Bahamas and New Brunswick overwhelming.

91In holding that the evidence was properly admissible, in the light of the position advanced by the defence, I do not suggest any criticism of the conduct of the defence at trial. The close, long-term, ongoing relationship between the complainants and the appellant during and after the alleged assaults and their willingness, if not determination, to be in his company, afforded support for the defence position that the assaults did not occur. It was tactically appropriate, if not essential, for the defence to make the relationship between the complainants and the appellant during and after the time frame in the indictment a central feature of the case. It was also reasonable for the defence to rely on the complainants' evidence concerning the sexual activity in the Bahamas and New Brunswick in an effort to undermine the overall credibility of the complainants. The fact that the evidence did not have that effect on this jury cannot condemn the strategy as inappropriate, nor can it open the door in this co urt to an attack on the admissibility of the evidence that ignores the manner in which the entire trial was conducted. The evidence was admissible.

92Mr. Wright also contends that if the evidence was admissible, the trial judge's instructions were inadequate. He submits that the trial judge was obliged to tell the jury that the evidence could not be used as circumstantial evidence that the appellant committed the offences charged in the indictment and that they could not use the evidence to infer that the appellant was the type of person who was disposed to commit the crimes alleged against him. I regard both submissions as part and parcel of the same claim. Mr. Wright contends that it was non-direction amounting to error in law to fail to caution the jury against resort to "propensity reasoning" to infer guilt. Before addressing this submission, I will summarize the instructions given by the trial judge.

93Shortly after the evidence of the trip to the Bahamas was first adduced, the trial judge, after hearing submissions from counsel, cautioned the jury that it could not convict the appellant based on evidence of sexual conduct in the Bahamas. He told the jury that the evidence could be used for "one purpose only". He went on to explain that he had admitted the evidence so that the jury could have "the total picture of the alleged relationship between this complainant and the accused" to assist them in assessing the credibility of the complainants. No objection was taken to this instruction.

94In his final instructions, the trial judge told the jury that they could not convict the appellant based on sexual conduct in the Bahamas or in New Brunswick. He went on to say:

As I said you have heard evidence of incidents after October 31st, 1979 as part of the narrative as an attempt to portray the entire relationship between the complainants and Mr. Batte, to provide you with a framework to enable you to better determine the credibility of the complainants.

Again, the defence says the fact that the girls looked forward to and enjoyed the Bahamas' trip and actively lobbied their parents to be permitted to go to New Brunswick belies their stories that they were being regularly sexually abused by Mr. Batte. I instruct you that you may not convict Mr. Batte of anything that occurred after July 31st, 1979 with respect to count one, or after October 31st 1979 with respect to the other four counts. You may use the evidence of [the complainants] of events after these dates only to assess their credibility.

95No objection was taken to this instruction. In my view, it was appropriate and it captured in an even-handed manner both the Crown and defence position with respect to the evidence of the events in the Bahamas and New Brunswick. As indicated earlier in these reasons, the defence strongly urged the jury to find that the complainants' conduct during their long relationship with the appellant was entirely inconsistent with the allegations they made more than ten years later and that much of their evidence concerning sexual activity in the Bahamas and New Brunswick was incredible. The Crown relied on the same evidence as being entirely consistent with the complainants' description of the relationship with the appellant during the time frame in the indictment. In effect, it was their evidence that throughout the relationship he used the many benefits he could bestow on them as a means of keeping the complainants under his control so that he could use them for his sexual gratification. The trial judge's in structions concerning the evidence of the events in the Bahamas and New Brunswick mirrored the manner in which the parties put their respective cases to the jury. I see no error in what he said. I turn now to the question of whether he said enough.

96Counsel's argument regarding the trial judge's failure to caution the jury against resort to propensity reasoning assumes that propensity reasoning could have no proper role in the jury's analysis of the evidence. I do not accept that assumption. While a jury must never convict based on a finding that an accused engaged in misconduct other than that alleged, and must never convict based on an assessment that the accused is a bad person, there will be cases in which a more focused form of propensity reasoning is entirely appropriate. I think this was such a case.

97Propensity reasoning involves two inferences. First, one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition (state of mind). Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue: R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161 at pp. 173-74, 108 C.C.C. (3d) 310 at p. 325 (C.A.). Assuming the evidence can reasonably support both inferences, there is nothing irrational or illogical in using propensity reasoning to infer that an accused committed the act alleged. Viewed in this way, the evidence of the accused's discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion: R. v. Arp, supra, at pp. 360-61 S.C.R., pp. 338-39 C.C.C.

98Despite its relevance, evidence that depends on propensity reasoning for its admissibility is usually excluded because its potential prejudicial effect outweighs its probative value: R. v. Arp, supra, at p. 361 S.C.R., p. 339 C.C.C. Often the evidence has little probative value because either or both of the necessary inferences needed to give the evidence probative force are tenuous. For example, the inference that an accused has a certain disposition based on evidence of a single discreditable act could be so tenuous as to have virtually no probative value. Similarly, where discreditable evidence is probative of a disposition, the inference that an accused acted in accordance with that disposition on the occasion in question will often be a very weak one. For example, evidence that an accused repeatedly abused "A" would not, standing alone, support the inference that he was disposed to abuse "B" on the occasion alleged in the indictment.

99Even where the discreditable conduct is such as to reasonably permit the inferences necessary to give propensity reasoning probative value, that evidence can still be misused by the jury. Often, evidence which can support propensity reasoning will have a much greater potential to improperly prejudice the jury against the accused. As Sopinka J. observed in R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111 at pp. 127-28, 50 C.C.C. (3d) 142, a jury may assume from the evidence of discreditable conduct that the accused is a bad person and convict on that basis, or they may convict in order to punish the accused for the discreditable conduct, or they may become embroiled in a determination of whether the accused committed the alleged discreditable acts and lose sight of the real question -- did he commit the acts alleged in the indictment? The risk that the jury will be led astray by evidence of discreditable conduct usually overcomes the probative force of that evidence where the probative force rests entir ely on propensity reasoning.

100Propensity reasoning also imperils the overall fairness of the criminal trial process. It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is. The criminal law's reluctance to permit inferences based on propensity reasoning reflects its commitment to this fundamental tenet: McCormick on Evidence, 5th ed., p. 658; R. Lempert and S. Saltzburg, A Modern Approach to Evidence, 2nd ed. (West Publishing Co., 1983), at p. 219.

101The wisdom of excluding evidence which relies entirely for its cogency on propensity reasoning is beyond doubt. In most situations, the evidence will provide little or no assistance in determining how an accused acted on the occasion in issue. It may, however, leave the jury with the clear sense that this accused is a bad person who merits punishment or at least does not merit the benefit of any reasonable doubt.

102The criminal law's resistance to propensity reasoning is not, however, absolute. There will be situations in which the probative force of propensity reasoning is so strong that it overcomes the potential prejudice and cannot be ignored if the truth of the allegation is to be determined. The probative force of propensity reasoning reaches that level where the evidence, if accepted, suggests a strong disposition to do the very act alleged in the indictment. For example, if an accused is charged with assaulting his wife, evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible. Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently and commit assaults. The evidence suggests a strong disposition to do the very act in issue -- assault his wife. In such cases, the jury is permitted to reason, assuming it accepts the evidence of the prior assaults, that th e accused was disposed to act violently towards his wife and that he had that disposition on the occasion in issue. The existence of the disposition is a piece of circumstantial evidence that may be considered in deciding whether the accused committed the alleged assault.

103The admissibility of prior assaults as evidence that the accused assaulted the same person on the occasion in issue is well established in the authorities: e.g., R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, 132 C.C.C. (3d) 97 (C.A.); McCormick on Evidence, supra, pp. 665-66. While the authorities refer to the evidence as relevant to demonstrate motive or animus, these labels merely describe the disposition that is established by the discreditable conduct evidence. They do not detract from the fact that the evidence derives its probative force through propensity reasoning: R. Lempert, S. Saltzburg, A Modern Approach to Evidence, supra, pp. 226-27, 229-30.

104In R. v. B. (L.), supra, my colleague Charron J.A. provided an insightful analysis of the role played by propensity reasoning in the determination of the admissibility of discreditable conduct by the accused. She first observed, relying on R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717 at p. 727, 55 C.C.C. (3d) 1 that propensity reasoning underlies the circumstantial value of evidence of discreditable conduct in most cases where that evidence is received. She then said, at p. 57 O.R., pp. 503-04 C.C.C.:

. . . propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission. . . .

It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited.

(Emphasis added)

105In describing how propensity reasoning should be addressed in deciding whether the evidence was sufficiently probative to merit its reception, Charron J.A. said, at p. 58 O.R., pp. 504-05:

Therefore, in assessing this aspect of the probative value of the evidence, it is important to circumscribe the meaning of "disposition" or "propensity", much in the same way as the notion of prejudice described above. The forbidden line of reasoning is that which leads to the conclusion that the accused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issues in the case, but rather, on the strength of the evidence that he is "a bad person" who would have a tendency to commit this offence.

Admittedly, the distinction may not always be an easy one to make. But, given the potentially high prejudice inherent in evidence of this kind, this requirement is meant to ensure that only evidence with a real connection to the case will be admitted as opposed to evidence that merely adds to the risk of a wrongful conviction.

106My colleague has captured the crucial issue to be addressed when determining whether discreditable conduct evidence should be admitted on the basis of propensity reasoning. Evidence which tends to show no more than a general disposition must be distinguished from evidence which demonstrates a disposition to do the very thing alleged in the indictment. If the evidence of the discreditable conduct is such that it shows a strong disposition to do the very act alleged in the very circumstances alleged, then the evidence has a "real connection" to the very issue to be decided -- did the accused commit the act: [See Note 9 at end of document] R. Delisle, "Similar Facts: Here We Go Again" (1999), 20 C.R. (5th) 38 at p. 41. The probative potential of propensity reasoning will be highest where the discreditable conduct is temporally connected to the allegations in the indictment and involves repeated acts of the same kind with the same complainant as those alleged in the indictment.

107Some commentators have suggested that R. v. Arp, supra, is inconsistent with the approach taken by Charron J.A. in R. v. B. (L.), supra, to propensity reasoning: see V. Maric, "Similar Fact Evidence: Preferring B. (L.) to Arp" (1999), 23 C.R. (5th) 57; R. Delisle, "Similar Facts: Here We Go Again", supra, at pp. 41-42. I do not agree. Both judgments drew on the same authorities from the Supreme Court of Canada, particularly R. v. B. (C.R.), supra. Factually, however, they were very different cases. Arp was charged with two murders, one of which was committed some two years before the other. The issue at trial was identity. The Crown contended that the evidence of the accused's involvement in each homicide was admissible to establish his guilt on the other homicide. It was in this factual context that Cory J. described propensity reasoning as an improper basis upon which to receive or use the evidence of one homicide in considering Arp's guilt on the other.

108The facts in Arp could not reasonably permit the drawing of either of the inferences necessary for legitimate propensity reasoning. It is difficult to see how a single act of violence demonstrates a disposition to act violently, much less a disposition to act violently in different circumstances some two and one-half years earlier or later. The danger of misusing propensity reasoning by inferring that Arp was a "bad person" who therefore committed both crimes was, however, great. Consequently, Cory J. held that if the evidence of one homicide was to be admitted on the other, the Crown had to demonstrate a legitimate process of reasoning which would avoid reasoning through propensity. This led Cory J. to a consideration of whether the circumstances were such as to permit, apart entirely from any inference to be drawn from propensity, the inference that it was likely that the two acts were committed by the same person. His summary of the elements of an appropriate charge where discreditable co nduct is admitted (at pp. 384-85 S.C.R., p. 356 C.C.C.) is also directed to cases, like R. v. Arp, supra, in which propensity reasoning is inappropriate.

109R. v. Arp, supra, does not hold that propensity reasoning is never permissible. Cory J., at p 361 S.C.R., p. 339 C.C.C., recognized that evidence of propensity is "usually inadmissible". He strongly reaffirmed the dangers associated with that form of reasoning and reiterated the exclusionary rule where inferences based on propensity reasoning are simply too weak to overcome the prejudice associated with drawing inferences based on propensity.

110The facts in R. v. B. (L.), supra, were very different than those in R. v. Arp. In R. v. B. (L.), supra, the Crown alleged that the accused had sexually abused his stepdaughter over a prolonged period of time while she was under his care and control. The Crown sought to lead evidence from three other witnesses (two natural daughters of the appellant and a younger sister of his first wife) who would testify that while they were under the appellant's care and control they were abused in a similar manner over a prolonged period of time. The trial judge admitted the evidence in part because it demonstrated "a system". [See Note 10 at end of document] The appellant attacked the admissibility on the basis that the trial judge had used propensity reasoning in relying on the evidence of the three other witnesses to support the complainant's evidence.

111After referring to the trial judge's reasons, Charron J.A. said, at p. 64 O.R., p. 511 C.C.C.:

The appellant is correct that this reasoning involves considerations of propensity in the sense that the appellant's prior misconduct, in so far as it showed a tendency to act in a particular way, was relied upon by the trial judge to support his finding that the appellant acted again in this fashion in committing the offence. However, as discussed earlier, this does not constitute an impermissible inference. It is simply consistent with the underlying proposition that gave the evidence its probative value in the first place. Nowhere in the trial judge's reasons is there any suggestion that he drew any inference of guilt from the general bad character of the accused reflected by his prior misconduct.

112In R. v. B. (L.), supra, as in this case, the issue was whether sexual assaults occurred. The evidence of the accused's sexual misconduct towards the other young girls in his charge was sufficiently connected to that issue to make the inferences to be drawn from propensity reasoning sufficiently cogent to warrant the admissibility of the evidence and the use of that reasoning. This was so even though the evidence, coming from three other witnesses, carried the potential prejudice inherent where evidence of discreditable conduct is given by witnesses other than the complainant. In the present case, the cogency of the propensity reasoning was arguably stronger since the misconduct involved the same complainants. The risk of prejudice was reduced since the evidence came from the same complainants and there was no risk that their credibility would be enhanced by the evidence of third parties: R. v. F. (D.S.), supra, at p. 619 O.R., p. 108 C.C.C.

113Neither the Crown nor the defence asked the trial judge to instruct the jury for or against the use of propensity reasoning. The trial judge approached the evidence, as counsel had, as going to the credibility of the complainants. The trial judge could have told the jury that they should not infer from the evidence of the appellant's discreditable conduct that he was the type of person who would engage in the criminal activity alleged against him: R. v. M. (B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1 p. 10, 130 C.C.C. (3d) 353 at p. 366 (C.A.). Had he elected to warn against the misuse of propensity reasoning, however, the trial judge would also have had to instruct the jury on its proper use. He would have had to instruct the jury that if they accepted the complainants' evidence, they could infer that the appellant had consistently, over a prolonged period, extracted sexual services from the complainants while they were under his control as his entitlement in return for the benefits he bestowed upon them. The trial judge would further have had to instruct the jury that if they were satisfied that the appellant had consistently extracted those services, they could infer that the appellant had done the same thing during the time frame set out in the indictment and could consider that evidence in determining whether the Crown had proved the allegations in the indictment beyond a reasonable doubt.

114I have no doubt that, on balance, an instruction which explained both the proper and improper uses of propensity reasoning would have operated against the appellant's interests. I see no error in the alleged non-direction.

Did the trial judge err in instructing the jury that it could ask itself why the complainants would fabricate these allegations and subject themselves to the rigours of the trial process?

115The impugned passage occurred during the trial judge's one paragraph statement of the position of the Crown in his initial instructions. He said:

The Crown says they [the complainants] were entirely believable and convincing. You should accept their evidence and find beyond a reasonable doubt Mr. Batte guilty of all counts. Why would they tell stories of this nature if they were not true? Why put themselves through the process of a trial and the aggravation of cross-examination if what they were saying was not true, argues the Crown.

(Emphasis added)

116This reference followed a more detailed review of the position of the defence. The defence position included the argument that for some reason the complainants were motivated to make false accusations against the appellant. Counsel had suggested that the complainants had been angry because the appellant had withheld part of their wages while they were working for him or that they were upset because he had sold one of them a lame horse shortly after she was married.

117In referring to the complainants' motive to fabricate as part of the position of the defence, the trial judge echoed defence counsel's closing address to the jury. Counsel had said to the jury:

Now, the process of finding facts, this fact finding process is applying your experience of life and your experience with people and their motivations for what is said.

(Emphasis added)

118Later, counsel dealt in more detail with what he alleged were the motivations of the complainants. He said:

Well, if you start any kind of discussion about motivation or why people are doing things, I mean, it is almost by definition speculative because none of us walk around with a glass plate so that we can look inside and see things. The best we can do is guess because we don't know what makes people tick. Sometimes people themselves don't know what makes them tick. We can only speculate. Well, there is obviously hatred because they worked hard and had to give half of their money from what they earned. There was the horse deal. You remember [D.D.] and her husband were furious and the friendship fell apart. I mean, things do happen. People fall out of friendship, car deals, horse deals. We know that [D.S.D.] wrote Mr. Batte a letter after that lunch with her mother saying, "Stay away". But perhaps it is because it is so speculative, that the law basically it doesn't require either my friend or myself to prove a motive. It doesn't require that we come up with an iron clad reason as to what propelled these p eople. But whatever propelled them, is they want him real bad. The sense you get is that they were working at it.

(Emphasis added)

119Clearly, it was central to the defence position at trial that the complainants had developed a strong hatred for the appellant for some reason (two were suggested), and that this hatred motivated the complainants to falsely accuse the appellant. The question of whether the complainants had a motive to falsely accuse the appellant and, if so, how that should affect their credibility was squarely before this jury.

120Questions directed to show that a witness has a motive to fabricate evidence are admissible, as is evidence from other witnesses that a witness had a motive to fabricate evidence: R. v. M. (B.), supra, at p. 17 O.R., p. 373 C.C.C.; R. v. P. (H.P.) (1996), 1996 17933 (MB CA), 112 C.C.C. (3d) 140 at p. 150 (Man. C.A.); P. McWilliams, Canadian Criminal Evidence, para. 37:20530. Juries are told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility. [See Note 11 at end of document]

121What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.

122The Crown did not make the submission attributed to it by the trial judge in the impugned passage. It was, however, implicit in the Crown's case that the complainants had no motive to fabricate their evidence. The complainants had denied that they were motivated by the events suggested to them by defence counsel, there was no evidence from any other witness concerning their motives and, in any event, the prior events referred to by counsel as supplying the motive seemed relatively trivial and were far removed in time from the making of the complaints.

123The question of why these complainants would make these allegations so many years after the fact in the face of what appeared to be a long-term, warm and friendly relationship with the appellant had to be in the mind of the jury. It was open to the trial judge to tell the jury that it was entitled to consider what motive, if any, the complainants had to falsely accuse the appellant of sexual abuse. It was further open to him to instruct the jury that if they concluded there was no such motive, it was open to them to consider why the complainants would make the allegation and expose themselves to the rigours of cross-examination on very personal matters. In doing so, the trial judge would be doing nothing more than telling the jury to use their common sense.

124The impugned passage does not suggest that the appellant had the onus of demonstrating that the complainants had a motive to fabricate false allegations. The trial judge had repeatedly told the jury that the Crown had the onus throughout. He did so in his general instructions and in reference to the specific elements of each of the offences in each of the five counts.

125If the trial judge deemed it appropriate to refer to the absence of a motive to fabricate as part of the case for the Crown, it would have been preferable for him to remind the jury (as counsel for the appellant had done) that motives sometimes remain hidden and that the absence of a motive to fabricate evidence was not determinative of the truth of the complainant's evidence. The second imperfection was overcome by the trial judge's general instructions on the assessment of credibility. He made it clear that that assessment was a holistic task requiring consideration of numerous factors. I do not think that the challenged passage would have led the jury to disregard those instructions and make a finding of credibility based entirely on an assessment of whether the complainants had a motive to fabricate their evidence.

126Judges seldom tell juries everything that which with the benefit of hindsight and close appellate scrutiny they could properly have included in their instructions. Perfection is, of course, not the applicable standard. Considering the instructions in their entirety, I do not think the instruction led the jury astray from applying its common sense to the question of why the complainants would make the allegations they did, and the significance of the answer to that question, to their overall assessment of the credibility of the complainants.

Did the trial judge's supplementary instructions result in a miscarriage of justice?

127Counsel for the appellant first argues that the trial judge advanced personal opinions on the evidence in his supplementary instructions. He did no such thing. The trial judge reviewed certain parts of the evidence in the context of providing further amplification of the positions of the Crown and the defence. After reviewing several submissions made by the Crown and the defence, the trial judge said:

Again, I caution you strongly these are positions taken by either side. They are not facts until you find them to be facts. Weigh them in your deliberations carefully, particularly with regard to the issue of credibility and make what conclusions and give what weight to them you think is necessary.

128Counsel for the appellant next argues that the trial judge effectively associated himself with the Crown by providing a Crown reply to the arguments raised by the defence and summarized by the trial judge in his initial instructions. Counsel submits that the supplementary instructions amounted to a Crown reply argument disguised as further instructions for the jury. Counsel submits that the trial judge compounded this error by raising arguments that had not been advanced by the Crown in its closing address. Trial counsel for the appellant made the same submissions.

129I would reject these submissions as unsupported by the record. In his initial charge, the trial judge presented the position of the defence and Crown in summary form. He put the defence position by way of eight points that the defence contended were important considerations in determining the credibility of the complainants. The trial judge then put the position of the Crown in a single paragraph filling slightly less than one half page in the transcript.

130Neither counsel was entirely satisfied with the trial judge's review of their respective positions. Defence counsel wanted additional points in support of his position put to the jury and also identified a factual error the trial judge had made in his review of the evidence in support of one argument advanced by the defence. Crown counsel wanted the trial judge to put the Crown's position in respect of the points that the trial judge had reviewed when describing the position of the defence. Defence counsel then argued that the trial judge should limit any further charge to the correction of the one factual error he had made in the initial charge.

131The trial judge did not accept entirely the position of either counsel. He elected to correct the factual error and to refer to some of the additional arguments that counsel had put forward in their objections.

132In his supplementary instructions, the trial judge corrected the factual error he had made and referred to two additional arguments in support of the defence position. He then referred to four submissions relied on by the Crown relating to the parts of the evidence with respect to which the trial judge had previously summarized the defence position. The trial judge specifically reminded the jury of the defence position in relation to one of the Crown's submissions that he reviewed. The trial judge finished his supplementary instructions, which took up four pages of the transcript, with the following direction:

Again, one last admonition, anything I have said now is not to be given any greater or lesser weight than what I said to you in my general charge. You are to take what I have said to you now as having been part of my general charge.

133The jury delivered their verdicts some three hours after the supplementary instructions were given.

134A trial judge is obligated to put the respective positions of the Crown and defence to the jury and to relate those positions to the evidence adduced at trial. He or she must strive to do so in a clear and balanced fashion. Ideally, a trial judge will give the necessary instructions as part of the initial charge so as not to risk giving the position of one party prominence over that of the other party. If, however, the trial judge is satisfied that the position of one or both parties has not been adequately addressed in his initial charge, the trial judge must correct that inadequacy by way of supplementary instructions. In doing so, he or she will be cautious to preserve the fairness of the trial.

135I cannot fault the trial judge for trying to assist the jury by amplifying on his initial instructions with respect to the position of both parties. He did so in a proper manner. The mere fact that he addressed four points in favour of the Crown and two in favour of the defence is of no moment. The trial judge made it abundantly clear that his supplementary instructions should be taken as part of his overall instructions and had no greater or lesser importance than his initial instructions.

136I also find no basis for the contention that the trial judge introduced new arguments in the course of his supplementary instructions. Each of the arguments he reviewed flowed naturally, if not obviously, from the evidence.

137If any criticism can be made of the trial judge's supplementary instructions, it is that they were unnecessary. Even if that criticism is well founded, it lends no support to the appellant's contention that those instructions resulted in a miscarriage of justice.

The non-direction with respect to the absence of a recent complaint

138The trial judge did not instruct the jury that the complainants' failure to make a timely complaint could be used by it to discredit their evidence. His failure to do so is not surprising. No one suggested that the instruction should be given. This issue first arose in Mr. Wright's written submissions made after oral argument on the appeal.

139Crown counsel argued that as the issue was not litigated at trial, it should not be considered on appeal. There is merit to the Crown's position, however, I am satisfied that as a matter of law, the trial judge was not required to give the instruction. I need not decide whether, assuming the submission had legal merit, it could be raised for the first time at this stage of the proceeding.

140In the 19th century, the common law developed a special rule of evidence applicable to sexual assaults against women known as the doctrine of recent complaint. It remained operative in Canada until 1983. The doctrine allowed the Crown to lead evidence from the complainant and others of a timely complaint made by the complainant concerning the sexual assault. The admissibility of this evidence was premised on the belief that women who were sexually assaulted would raise "a hue and cry" against their assailant at the first reasonable opportunity. The rationale for the doctrine was explained in R. v. Kribs, 1960 7 (SCC), [1960] S.C.R. 400 at p. 405, 127 C.C.C. 1:

The principle is one of necessity. It is founded on factual presumptions which, in the normal course of events, naturally attach to the subsequent conduct of the prosecutrix shortly after the occurrence of the alleged acts of violence. One of these presumptions is that she is expected to complain upon the first reasonable opportunity, and the other, consequential thereto, is that if she fails to do so, her silence may naturally be taken as a virtual self- contradiction of her story.

141As a corollary to the rule permitting evidence of recent complaint, a trial judge was required to instruct the jury that the absence of any evidence of a recent complaint told against the truthfulness of the complainant's evidence: R. v. Boyce (1975), 1975 569 (ON CA), 23 C.C.C. (2d) 16 at pp. 32-34 (Ont. C.A.).

142The doctrine rested on two assumptions. First, it was assumed that complainants in sexual assault cases were more likely to fabricate allegations than other complainants. The Crown was therefore allowed to fortify the complainants' allegation with evidence that would normally be rejected as unnecessary self-serving hearsay. Second, the recent complaint doctrine assumed that all victims of sexual assaults would react to the assault in the same way and make a complaint at the first reasonable opportunity. The veracity of those who did not respond as they should was automatically suspect.

143By the 1970s, widespread dissatisfaction with many of the statutory and common law rules applicable to the prosecution of sexual offences had attracted the attention of Parliament. In 1983, Parliament undertook an extensive overhaul of much of the law relating to these offences. [See Note 12 at end of document] The 1983 amendments and others which followed have been characterized as attempts by Parliament to modernize and sensitize the criminal law's approach to sexual offences: R. v. Cuerrier, 1998 796 (SCC), [1998] 2 S.C.R. 371 at p. 381, 127 C.C.C. (3d) 1, per L'Heureux-Dubé J. concurring.

144Among the many changes to the existing law made by the 1983 amendments was the enactment of s. 246.5 [now s. 275] of the Criminal Code. It read:

246.5 The rules relating to evidence of recent complaint in sexual assault cases are hereby abrogated.

145The annulment of the law relating to recent complaint was a clear rejection by Parliament of the two assumptions underlying the common law doctrine. By repealing this judge- made rule, Parliament declared that it was wrong to suggest that complainants in sexual cases were inherently less trustworthy than complainants in other kinds of cases, and that it was wrong to assume that all victims of sexual assaults, whatever their age and whatever the circumstances of the assault, would make a timely complaint. Both assumptions reflected stereotypical notions which demeaned complainants (most of whom were female) and ignored the realities of human experience. It made no sense to suggest that all persons subjected to a traumatic event such as a sexual assault could be expected to react in the same way and make a timely complaint: R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at p. 136, 74 C.C.C. (3d) 134. Indeed, that assumption is now so obviously wrongheaded that it is difficult to believe that it was ever part of the accepted wisdom of the common law.

146By removing the doctrine of recent complaint, Parliament sought to eliminate a rule which treated complainants in sexual assault cases as second-class persons. In addition, Parliament sought to dispel an assumption which had a real potential to mislead the trier of fact and distort the search for the truth. The abrogation of the rule struck a blow for both equality and the truth-finding function of the criminal trial process.

147Mr. Wright, for the appellant, does not take issue with the reasons behind the abolition of the common law doctrine of recent complaint. He submits, however, that at the same time Parliament chose to abolish the doctrine as it related to offences committed after the 1983 amendments came into force, Parliament also legislated so as to preserve the doctrine for offences committed before the amendments became law. He attempts to reconcile these apparently contradictory measures by asserting that Parliament recognized that accused persons charged with offences that occurred prior to the 1983 amendments had a vested right to the application of the evidentiary laws as they existed prior to the amendment. This vested right extended to rules which Parliament had specifically declared to be unworthy of continued existence.

148In support of his position, Mr. Wright has undertaken a painstaking march through the blizzard of statutory amendments to the sexual offence provisions of the Criminal Code enacted since 1983. The linchpin of his submission, however, is s. 33 of the 1983 amendments. That section, one of the transitional provisions in the statute, provided:

33. An offence committed prior to the coming into force of this Act against any provision of law affected by this Act shall be dealt with in all respects as if this Act had not come into force.

149Section 33 recognized that the Crown could prosecute crimes, like rape and indecent assault, that had occurred prior to the 1983 amendments, even though the Criminal Code sections creating those offences had been repealed: see Interpretation Act, R.S.C. 1985, c. I-21, s. 43. Mr. Wright argues that the phrase "shall be dealt with in all respects as if this Act had not come into force" preserved the pre-amendment evidentiary rules pertaining to rape and indecent assault. He submits that the very general language of s. 33 rendered Parliament's specific abrogation of the common law doctrine of recent complaint in sexual assault cases inapplicable to prosecutions for pre-amendment offences. It is his position that s. 33 preserved the common law doctrine of recent complaint as it stood at the time the amendments came into force.

150The validity of this submission depends on three propositions:

-- Section 33 reaches common law rules of evidence and directs that in prosecutions for offences which predated the amendments those rules continue to apply and take precedence over any statutory amendments to those rules affected by the 1983 amendments.

-- Section 33 not only preserved the common law rules of evidence and specifically the doctrine of recent complaint, but "froze" those rules as of the date of the 1983 amendments and foreclosed judicial alteration of the doctrine as it applied to prosecutions for pre-amendment offences.

-- The common law doctrine of recent complaint as it stood at the time of the amendments continued to apply to pre- offence amendments even after the repeal of s. 33 by the Revised Statutes of Canada 1985 Act, S.C. 1987, c. 48.

151I have difficulty accepting any of these propositions. [See Note 13 at end of document] I find it necessary, however, to address only the second proposition in detail. Assuming that s. 33 reaches evidentiary matters and in effect creates an exception to Parliament's abrogation of the recent complaint doctrine effected in the same legislation, I cannot agree that s. 33 also "freezes" the common law as of the date of the amendments and prevents the courts from modifying common law rules of evidence as circumstances demand.

152Section 33 does not give the recent complaint doctrine statutory status. Parliament did not declare that the doctrine should be applied to pre-amendment offences. Rather, it directed that those offences should be "dealt with in all respects as if this Act had not come into force." Reading those words in their most favourable light from the appellant's perspective, they can mean no more than that the common law rules of evidence should continue to apply as if the Act had not been passed. Common law rules of evidence are made by the courts. They may be modified and even eliminated by the courts. Neither the Crown nor the accused have a vested right to the application of a particular manifestation of a common law rule of evidence. They are entitled to have the common law rules of evidence, as they exist at the time of trial, properly applied by the court. Mr. Wright's submissions would not treat the pre- amendment offences "in all respects" as if the amending legislation had not been passed, but instead would treat the amendments as giving statutory force to the common laws respecting recent complaints as they existed at the time of the amendments.

153Prior to the 1983 amendments, it was open to the courts to modify or abrogate the recent complaint doctrine. [See Note 14 at end of document] Section 33 cannot be read as doing anything more than preserving that authority as it relates to pre-amendment offences by declaring that those offences shall be "dealt with in all respects as if this Act had not come into force." If s. 33 touches evidentiary matters at all, and if it reaches the doctrine of recent complaint despite the specific abrogation of that rule, it does no more than preserve its status as a common law rule of evidence leaving its future form and application to be determined by the courts.

154I have no hesitation in holding that the courts, as the custodians of the common law of evidence, should follow Parliament's lead and abrogate the common law doctrine of recent complaint in cases not reached by the statutory abrogation of the rule. As indicated above, the doctrine rests on stereotypical assumptions that have no basis in fact. Nor is it simply a harmless relic. It diminishes the inherent worth of complainants and their right to be treated as individuals before the law. It also undermines the truth-seeking function of the criminal trial process. It cannot be argued that the rule serves some other positive purpose such as promoting an accused's constitutional right to a fair trial. No principled basis for preserving the doctrine in relation to pre-amendment offences has been suggested. I can think of none.

155There is no reason to preserve the common law doctrine of recent complaint for historical sexual offences some 20 years after Parliament had abrogated that doctrine as it applied to offences committed after January 1983. To continue to apply the doctrine would be to ignore the harm it can do and to undervalue the dynamic vitality of the common law. The doctrine has no place in the present day common law rules of evidence. The approach to be taken in assessing the significance of the failure of a complainant to make a timely complaint should be the same regardless of whether the alleged offence occurred before or after the 1983 amendments came into force. That approach is described in R. v. M. (P.S.) (1992), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 at pp. 408-09 (Ont. C.A.):

The significance of her failure [the complainant] to complain should not be the subject of any presumptive adverse inference based on now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse . . . The importance to the complainant's credibility of his or her failure to make a timely complaint will vary from case to case and will depend on the jury's assessment of the evidence relevant to that failure.

156It would have been wrong for the trial judge to instruct the jury as the appellant now contends he should have. Consequently, his failure to do so was not non-direction amounting to misdirection.

V.

The Sentence Appeal

157The trial judge imposed sentences totalling four years. In doing so, he acknowledged the appellant's age (60), the positive pre-sentence report and that:

In all respects except for the incidents that are the subject of these charges he [the appellant] appears to be a generous, contributing, model citizen.

158The trial judge was also alive to the aggravating features of the appellant's crimes. He observed:

However, the charges are a serious violation of a trust relationship with young, impressionable, easily-led children. He preyed on their vulnerability and their love of working with horses. That they continued to return to the farm and engaged in gratifying his sexual desires demonstrates his all powerful hold over them.

159I adopt these comments. These were serious crimes committed repeatedly over several months against young and very vulnerable victims. A denunciatory sentence was fully justified. The sentences imposed by the trial judge were well within the range recognized by this court as appropriate for serious sexual offences committed against children by persons in a position of trust. On the record before the trial judge, I see no basis upon which to interfere with the sentences he imposed.

160On the hearing of the appeal, the court received certain information concerning medical problems which the appellant has experienced after he was sentenced. He was in a car accident and suffered a significant shoulder injury which has left him with a long-term disability. The appellant also had surgery to remove certain benign tumours from his neck. These problems, while unfortunate, do not warrant any variation in the sentence imposed at trial.

VI.

161I would dismiss the conviction appeal. I would grant leave to appeal sentence and would dismiss the sentence appeal.

Appeal dismissed.

Notes

Note 1: The jury also convicted the appellant on two charges of having sexual intercourse with a child under 14. Those convictions were stayed given the convictions on the rape charges.

Note 2: Non-publication orders under s. 486(3) of the Criminal Code were made at both trials. Those orders remain in effect.

Note 3: The procedural history of the charges is set out by Rosenberg J.A. in his reasons at paras. 15-24.

Note 4: She first recalled that the appellant had changed his pants shortly before the trial, some 15 years after the event: see supra, para. 15 [p. 329 ante].

Note 5: The motion was heard by MacKenzie J. He was not the trial judge. It was not, however, suggested by the Crown that the appellant could not challenge the ruling as part of his conviction appeal: R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, 86 C.C.C. (3d) 97. The appellant also sought production of the counselling records referable to the third complainant, N., on the same motion. Given our disposition of that appeal, it is unnecessary to consider the merits of that application.

Note 6: Although both the common law and statutory scheme require likely relevance as a condition precedent to production, the schemes differ in that the common law scheme set down by the majority in R. v. O'Connor required only a demonstration of likely relevance in order to require production to the judge. The statutory scheme following the dissent of L'Heureux-Dubé in R. v. O'Connor, supra, requires likely relevance plus a demonstration that production is "necessary in the interests of justice": Criminal Code s. 278.5(1)(b).

Note 7: It would appear that Ms. Neumin would not be a compellable witness under the present legislation: see Criminal Code s. 278.4(2).

Note 8: By discreditable conduct, I mean conduct which is outside the boundaries of the indictment and is capable of reflecting badly on the accused's character: see R. v. B. (L.), supra, at p. 40 O.R., p. 488 C.C.C.

Note 9: Evidence of discreditable conduct which is sufficiently specific to permit the inference that the accused committed the act in question is akin to evidence of habit rather than evidence of character or disposition. As the authors of McCormick on Evidence, supra, at pp. 686-87, indicate, "Character is a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness. Habit, in the present context, is more specific. It denotes one's regular response to a repeated situation. If we speak of a character for care, we think of the person's tendency to act prudently in all the varying situations of life -- in business, at home, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of responding to a particular kind of situation with a specific type of conduct." The authors note that evidence of habit is generally receivable. It should be noted, however, that some American authorities would not extend the concept of habit to prior sexual conduct but would limit it to "semi-automatic acts".

Note 10: Reference to "system", one of the long-recognized tickets to admissibility in similar fact evidence cases, is simply another way of describing a propensity to act in a particular manner in certain circumstances.

Note 11: The many cases referred to by the appellant in which it has been held that an accused should not be asked to explain why a complainant would lie, does not detract from the relevance of evidence showing the existence or the absence of a motive to fabricate evidence. That line of questioning is improper for reasons which have nothing to do with the relevance of evidence of a motive to fabricate evidence.

Note 12: The amendments were contained in S.C. 1980-81-82-83, c. 125. They came into force as of January 4, 1983. I will refer to this statute as the "1983 amendments".

Note 13: With respect to the first proposition, there is a presumption that the rules of evidence, as they exist at the time of trial, are the rules to be applied: R. v. E. (A.W.), 1993 65 (SCC), [1993] 3 S.C.R. 155 at pp. 187-88, 83 C.C.C. (3d) 462 at p. 485, per Lamer C.J.C., dissenting on another ground. I doubt whether the general language of s. 33, particularly when considered with a specific abrogation of the rule of recent complaint in the same legislation, rebuts that presumption: see R. v. R. (A.) (1994), 1994 4524 (MB CA), 88 C.C.C. (3d) 184 at p. 187, 92 Man. R. (2d) 183 (C.A.). With respect to the third proposition, the only appellate authority on point is directly against the appellant: R. v. H. (W.W.) (1998), 1998 5432 (PE SCAD), 158 Nfld. P.E.I.R. 14, 490 A.P.R. 14 at p. 18 (P.E.I.C.A.).

Note 14: In R. v. Timm, 1981 207 (SCC), [1981] 2 S.C.R. 315 at pp. 320-21, 59 C.C.C. (2d) 396 at p. 401, Lamer J. suggested that the rule should be reconsidered. Parliament did so in the 1983 amendments.