R. v. Talbot, 2002 CanLII 23584 (ON CA)

COURT OF APPEAL FOR ONTARIO

DATE: 20020117
DOCKET: C33623

LASKIN, GOUDGE and SIMMONS JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Paul Slocombe for the Appellant

Respondent

• and -

GERALD TALBOT

J. Sandy Tse for the Respondent

Appellant

Heard: December 12, 2001

On appeal from convictions entered by Justice J. MacDonald on March 9, 1994, following a trial by judge and jury.

LASKIN J.A.

A. INTRODUCTION

1The appellant Gerald Talbot was charged on a 17 count indictment with numerous sexual offences against three young teenaged boys and with counselling two of these boys to commit break and enters. The Crown’s theory was that the appellant plied the boys with alcohol or drugs or both, to weaken their resistance, and then had sex with them. The appellant was tried before MacDonald J. and a jury in early in 1994. The Crown’s case consisted mainly of the evidence of the three boys, two medical experts and three similar fact witnesses. The defence called no evidence. The jury found the appellant guilty on 16 of the 17 counts. Some of these counts were stayed on the basis of R. v. Kienapple, [1975] 1 S.C.R. 729, 1974 14 (SCC). In January 1995 the appellant was found to be a dangerous offender and sentenced to an indeterminate sentence.

2He appeals his convictions on five grounds.

1. The three counts of anal intercourse under s. 159 of the Criminal Code must be quashed because this court has declared s. 159 unconstitutional;

2. In the light of R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.), the trial judge did not properly instruct the jury on reasonable doubt;

3. The trial judge erred in permitting the Crown to call a medical expert on how children disclose sexual abuse and then erred in instructing the jury on how they could use the expert’s testimony;

4. The trial erred in failing to give the jury a “clear and sharp” Vetrovec ¹ warning about the evidence of the three complainants; and

5. The trial judge erred in permitting the Crown to lead similar fact evidence.

The appellant submits that because of these errors he was denied a fair trial.

B. THE EVIDENCE OF THE THREE COMPLAINANTS

3The indictment alleged that the appellant committed the offences of which he was convicted over a 21-month period between May 1991 and February 1993. These offences consisted of three counts of sexual assault, three counts of anal intercourse, two counts of sexual interference, two counts of invitation to sexual touching, two counts of administering a noxious substance, two counts of making child pornography and two counts of counselling to commit break and enter. Convictions were entered on nine of these counts, but all seven counts of anal intercourse, sexual interference and invitation to sexual touching were stayed on Kienapple principles.

4The appellant was 39 years old when he began to commit these offences. The three complainants, P.G., K.G. and M.O., were in their early teens. Each of the three testified for the Crown. A brief summary of their evidence will put the appellant’s grounds of appeal in context.

(a) P.G.

5P.G., the victim on seven of the counts, first met the appellant in 1991. He was 13 years old and on the run from the Childrens’ Aid Society. Within a few days of meeting the appellant, he moved into the appellant’s home on Queen Street East in Toronto. The first incident of sexual abuse took place the evening he moved in. The appellant had a party at his house. He poured P.G. big plastic cups of vodka and encouraged him to drink them. P.G. believed he drank the entire 48-ounce bottle that evening. When he finished the vodka, he smoked two joints of hashish and drank three beers that the appellant gave him. He became ill, vomited and then laid down in the appellant’s bedroom. The appellant removed P.G.’s clothes, saying “Here, take them off just in case you get any puke on them”. P.G.’s head was spinning and he couldn’t move. The appellant had anal intercourse with him.

6Three days later, the second incident of anal intercourse occurred. P.G. had drunk eight or nine beers. The appellant threatened to kill him if he told anyone about the earlier incident. The appellant then removed P.G.’s clothes and had sex with him. P.G. said nothing and continued to live with the appellant. Sexual activity between the two took place frequently: every day, two or three times a night.

7After he had been living with the appellant for a while, P.G. agreed to have nude pictures taken of himself. Four pictures were taken. That was the only time the appellant asked him to submit to being photographed nude.

8In the spring of 1992, the appellant and P.G. moved from Queen Street East to a basement apartment on Derwyn Avenue in Toronto. Their sexual activity became less frequent, occurring three or four times a week. In June 1992 they moved again, to Linsmore Crescent in Toronto. But in the early fall of 1992, the appellant kicked P.G. out of the house. P.G. then went to live with a friend of his mother but visited the appellant until January 1993.

9In addition to sexually abusing P.G., the appellant directed him and one of the other complainants, M.O., to commit several break and enters. Although convicted of some of them, he did not tell the police of the appellant’s involvement until much later. Nor, for a long time, did he tell any one – not the Childrens’ Aid Society, his brother, his mother or the authorities – that the appellant had sexually abused him. He said that he thought of the appellant as an uncle.

10P.G. also testified about an incident with a Mr. Rivera, which was relied on by the defence. When the incident occurred P.G. had known Rivera for about three months. They had spent almost every weekend together. One night at a party P.G. drank about ten beers. Rivera then forced him, at knife point, to take some valium. Later the two took a cab to Rivera’s house. P.G. ended up in Rivera’s bed and fell asleep. He testified that when he awoke Rivera was on top of him having anal intercourse.

11Later that day, P.G. went to a birthday party with his girlfriend. He told her about the incident with Rivera and about the appellant’s sexual abuse of him. He then changed his mind and told his girlfriend that what he had said about the appellant was untrue. That evening he told the appellant “Rivera screwed me”. The appellant warned P.G. about Rivera and insisted on calling the police. The appellant was arrested shortly after this incident.

12P.G. had a youth record. In January 1992, he was convicted of break and enter, carrying a concealed weapon and failing to attend court. He was sentenced to time served (one month) and one year probation. In December 1992, he was convicted of theft and again sentenced to probation, this time for fourteen months.

(b) K.G.

13K.G., the victim on three of the counts, was P.G.’s older brother. He had spent five or six years in the care of the Childrens’ Aid Society when he met the appellant through his brother and M.O. When he was 15 years old K.G. moved into the appellant’s basement apartment on Derwyn Avenue.

14K.G. testified about an incident in the summer of 1992. He and the appellant were at a Chinese restaurant and he had a headache. The appellant offered him a Tylenol 3, which he took. The two then returned to Derwyn Avenue and K.G. began drinking Jack Daniels and Pepsi, some of them poured by the appellant. He testified that when he awoke it was dark and he was in bed beside the appellant. He felt drunk and went to the washroom, where he noticed his underwear was inside out. He asked the appellant what had happened and the appellant replied that he had removed K.G.’s clothes because he seemed sick or too hot.

15P.G. also testified about this incident. The appellant had asked P.G. to sleep on the couch in the living room, but P.G. could hear the appellant breathing loud and the mattress bouncing. So he looked through a window into the bedroom and claimed to have seen the appellant from the back, naked, moving up and down. P.G. could not see his brother. The next day the appellant told P.G. that he had put 28 valium into K.G.’s drink. The appellant instructed P.G. not to tell his brother.

16M.O., the victim on six of the counts, was 12 or 13 years old when he met the appellant. He testified about this meeting. He was in Grade 8 at the time and enrolled in special education classes. One day after school. he saw the appellant sitting on his doorstep drinking beer. The appellant gave M.O. one-half a beer and they started to talk. The appellant asked M.O. if he had a dad. When M.O. said no, the appellant asked him if he wanted the appellant to be his dad. M.O. said yes. The appellant continued talking. He said to M.O., “If you love me, you take off your clothes and get on the bed”. M.O. became scared and asked the appellant what he meant. The appellant said that people show their love in different ways and “If you love me, you take off your clothes”. M.O. did so. The appellant then had anal intercourse with him.

17M.O. agreed to do work around the appellant’s home. He said that he visited the appellant at each of his residences, slept over every two or three days, and had both oral and anal intercourse with him on many of these visits. The appellant also took several nude photographs of M.O. Ten of these photographs were introduced in evidence at the trial. The appellant was in two of them.

18M.O. also testified that the appellant directed him and P.G. to break into several houses, which they did. The appellant gave them the equipment to commit these break and enters: a gym bag, a crowbar, a screwdriver, a hammer, flashlights, tape and gloves. M.O. and P.G. gave the proceeds of their crimes to the appellant.

19M.O. was vigorously cross-examined on the inconsistencies between his evidence at trial and his statements to the police. He admitted that he was a good liar and had fooled his mother and fabricated stories to the police several times. He also acknowledged that he had told his social worker, hospital personnel and the Catholic Childrens’ Aid Society that the appellant had not sexually abused him. In convicting the appellant, however, the jury obviously accepted M.O.’s evidence at trial as well as the evidence of P.G. and K.G.

20I turn now to the appellant’s grounds of appeal.

C. THE GROUNDS OF APPEAL

1. The counts of anal intercourse

21The appellant was found guilty by the jury on three counts of anal intercourse contrary to s. 159 of the Criminal Code. However, these counts were later conditionally stayed by the trial judge under Kienapple, supra. After his trial this court, in two decisions, declared s. 159 unconstitutional. The court held that s. 159 violated the equality guarantee in s. 15 of the Charter and could not be saved under s. 1. See R. v. M. (C.) (1995), 1995 8924 (ON CA), 98 C.C.C. (3d) 481 and R. v. S. (A.) (1998), 1998 14610 (ON CA), 130 C.C.C. (3d) 320.

22Because of this declaration of unconstitutionality, the Crown concedes that the counts of anal intercourse cannot stand. Counts 4, 9 and 13 will therefore be quashed.

2. The charge on reasonable doubt

23This is yet another pre-Lifchus trial, post-Lifchus appeal in which the adequacy of the trial judge’s charge on reasonable doubt is challenged. Here the appellant submits, and the Crown acknowledges, that the trial judge’s charge on reasonable doubt fell short of the requirements of Lifchus in two ways. First, the trial judge told the jury that the words “reasonable doubt” should be given “their ordinary and natural meaning” and not be considered “as a legal term having some special connotation”. Second, he failed to tell the jury that proof beyond a reasonable doubt is more than proof on the balance of probabilities. These two shortcomings are apparent in the trial judge’s explanation of reasonable doubt, which he gave to the jury once at the beginning of his long charge and once at the end:

What is reasonable doubt? When I speak of reasonable doubt, I use the words in their ordinary and natural meaning. I do not use them as a legal term having some special connotation. A reasonable doubt is a doubt based upon reason and common sense, after having considered all of the evidence as a whole. It is a real doubt, not an imaginary or frivolous doubt. Reasonable doubt must not be based upon conjecture or speculation, and, as mentioned, it applies only to the essential elements, not to other matters. Please note that reasonable doubt may arise because of a lack of evidence proving guilt as well because you are unable to determine the credibility or believability of particular witnesses in relation to the essential elements.

Keep in mind as well, members of the jury, that it is rarely possible to prove anything with absolute or mathematical certainty. Consequently, the burden of proof on the Crown is to prove guilt beyond a reasonable doubt, but not beyond a shadow of a doubt.

24These two shortcomings – describing reasonable doubt as an ordinary expression and failing to distinguish the criminal from the civil standard of proof – give rise to the concern that the jury may conclude “probable guilt” is enough to convict. These shortcomings are, however, found in many pre-Lifchus jury charges in this province. And as later decisions of both this court and the Supreme Court of Canada have emphasized, they do not automatically amount to reversible error. Instead, this court must assess the shortcomings in the context of the charge as a whole and of the entire trial. The court must then make a judgment call whether it was reasonably likely that the jury convicted the appellant by applying the wrong standard of proof, thus depriving the appellant of a fair trial. See R. v. Rhee (2001), 2001 SCC 71, 158 C.C.C. (3d) 129 (S.C.C.) and R. v. Feeley (2001), 2001 105 (ON CA), 156 C.C.C. (3d) 449 (Ont. C.A.).

25Here my judgment call is that it was not reasonably likely the jury misunderstood the heavy burden of proof on the Crown. I base this conclusion on the cumulative effect of six considerations. First, at the beginning of his charge the trial judge emphasized the jurors’ responsibility to protect persons from unjust convictions by convicting only on proof beyond a reasonable doubt:

Juries have a direct and deciding voice in the administration of justice. You are engaged in one of the most important duties which a citizen can be called upon to perform. You are now judges of this court. On the one hand, it is of fundamental importance that no person shall be found guilty of any criminal offence which he or she did not commit. On the other hand, you are the guardians of the legal rights of the community in which you live. That community relies upon you to ensure that those who commit crimes are strictly but fairly dealt with. Your responsibility as jurors is to protect persons from unjust convictions and, as well, to protect the safety and the security of the community by finding guilt against persons proven beyond a reasonable doubt to have committed crimes.

This cautionary instruction reduces the likelihood that the jury misunderstood the burden of proof. See R. v. Satkunananthan (2001), 2001 24061 (ON CA), 152 C.C.C. (3d) 321 (Ont. C.A.).

26Second, the outcome of the trial turned largely on the credibility of the three complainants, and the trial judge linked his instruction on credibility to reasonable doubt and the presumption of innocence:

You should determine the credibility of any witness after considering all of the evidence. Remember that a reasonable doubt may exist as a result of your determinations respecting credibility. As I am sure you appreciate from Mr. Donohue’s [defence counsel’s] remarks to you, it is a major part of Mr. Talbot’s defence that he is presumed to be innocent, and these three complainants are such incredible witnesses that none of them proves any of their allegations beyond a reasonable doubt. That is Mr. Donohue’s submission; that is for you to determine.

27Third, despites its shortcomings, the trial judge’s charge on reasonable doubt complies with Lifchus in important ways: by stating that the burden of proof rests on the Crown and never shifts; by linking the burden of proof to the presumption of innocence; and by indicating that reasonable doubt must be based on reason and common sense but cannot be an imaginary or frivolous doubt.

28Fourth, the trial judge emphasized the Crown’s burden by repeating the words reasonable doubt – by the Crown’s tally – no less than 171 times in the course of his original charge.

29Fifth, though the charge did not expressly differentiate between the criminal and civil standards, it did not contain any misleading statements that might lead the jury to conclude that it could convict on a balance of probabilities.

30Sixth, and most important, three key persons at the trial – the two counsel and the trial judge – were all satisfied that the jury understood the high standard of proof needed for a conviction. That they were so satisfied is evident not just from the failure of either counsel to object to the instructions on reasonable doubt but from an exchange that occurred near the end of the trial. In response to a question from the jury the court reporter read back defence counsel’s closing address, which had emphasized that “probable guilt” could not support a conviction. The court reporter, however, apparently made an inadvertent slip of the tongue, prompting a discussion between defence counsel and the trial judge about whether the jury should be recalled and the closing address re-read. Neither thought the jury should be recalled and the trial judge, significantly, observed:

Your address on Friday was perfectly plain that probably guilty is not good enough, it must be guilt beyond a reasonable doubt. I gave to them in my charge twice that concept and referred to proof beyond a reasonable doubt on so many occasions through the course of the charge and the recharge, that what I think you have correctly stated was an inadvertent slip on the part of the reporter in reading back your address to the jury, could not possibly affect the decisional process. I noted the same thing, but it struck me that in the context of all of your comments, and all else that has been said respecting the appropriate burden, that it must have been obvious to them that that was not what you said.

31I would not give effect to this ground of appeal.

3. The expert evidence

32The Crown called two medical experts, Dr. Dirk Huyer, an expert in the medical aspects of child abuse ² and Dr. Clive Chamberlain, a psychiatrist, who was qualified as an expert on the sexual abuse of children. On appeal the appellant challenges only the evidence of Dr. Chamberlain.

33The three complainants, P.G., K.G. and M.O., did not disclose the appellant’s sexual abuse immediately after it occurred. Instead, disclosure was delayed, at times inconsistent, and marked by recantations. The defence relied on the way the complainants disclosed the appellant’s abuse to argue that their allegations were fabricated. Dr. Chamberlain was called by the Crown to explain to the jury that delayed or inconsistent disclosure and even recantation of claims of sexual abuse by child victims is not unusual. He testified that it is “a very commonly observed pattern of behaviour of kids who have been involved in sexual situations with adults” and he discussed the reasons for it. But he also cautioned that “this kind of disclosure on and off and recantation, I don’t think that it, by itself, should tell us anything about the factual veracity of the disclosures that are ultimately made … it ought not to be seen as a certain indicator that a child has been sexually abused”.

34At trial, defence counsel did not object to the admissibility of Dr. Chamberlain’s opinion evidence. On appeal, however, relying on the recent Supreme Court of Canada decision in R. v. D. (D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41, the appellant submits that Dr. Chamberlain should not have been allowed to testify because his testimony did not meet the necessity criterion for the admissibility of expert evidence. The appellant also submits that, once admitted, the trial judge failed to properly instruct the jury on how they could use Dr. Chamberlain’s evidence.

35The Supreme Court’s decision in R. v. Mohan (1994), 1994 80 (SCC), 89 C.C.C. (3d) 402 governs the admissibility of expert evidence. To be admissible, the evidence must be (i) relevant; (ii) necessary; (iii) not subject to an exclusionary rule; and (iv) given by a properly qualified expert. Here only the second criterion, necessity, is in question. Dr. Chamberlain’s evidence was relevant to what inferences, if any, might be drawn from the way the complainants reported the appellant’s sexual abuse, thus permitting the jury to better assess the defence position; his evidence was not subject to an exclusionary rule; and he is recognized as a highly qualified expert in child sexual abuse.

36To satisfy the necessity criterion, the expert must give evidence that is likely to be outside the ordinary experience and knowledge of the trier of fact, in this case the jury. So stated, the necessity criterion attempts to meet the concerns that expert evidence is expensive and time consuming and has the potential to distort the jury’s fact finding function by turning jury trials into a battle of experts.

37The Crown argues that Dr. Chamberlain’s evidence satisfied the necessity criterion because the information he provided about children’s disclosure patterns was likely outside the jurors’ ordinary experience and knowledge, yet was important information in assessing the competing inferences to be drawn from late or inconsistent reporting or from recantations. Over the past 15 years expert evidence similar to that given by Dr. Chamberlain has often been admitted in child sexual abuse cases and its admission has been upheld on appeal. See R. v. B. (G.) (1990), 1990 7308 (SCC), 56 C.C.C. (3d) 200 (S.C.C.); R. v. J. (F.E.) (1989), 1989 7131 (ON CA), 53 C.C.C. (3d) 64 (Ont. C.A.); R. v. Marquard (1993), 1993 37 (SCC), 85 C.C.C. (3d) 193 (S.C.C.); R. v. Mair (1998), 1998 1659 (ON CA), 122 C.C.C. (3d) 563 and R. v. T. (D.B.) (1994), 1994 929 (ON CA), 89 C.C.C. (3d) 466.

38But in D. (D.) – in which the accused was charged with sexual assault and invitation to sexual touching of a 5-year-old – the majority of the Supreme Court of Canada held that expert evidence on the late disclosure of child sexual abuse did not meet the necessity criterion in Mohan and was thus inadmissible. Major J., writing for the majority, summarized the expert’s evidence as follows, at p. 64:

In diagnosing cases of child sexual abuse, the timing of the disclosure, standing alone, signifies nothing. Not all victims of child sexual abuse will disclose the abuse immediately. It depends upon the circumstances of the particular victim.

In Major J.’s view, this evidence “was not unique or scientifically puzzling but was rather the proper subject for a simple jury instruction”.

39Despite the holding in D (.D.) I would not give effect to the appellant’s submission for two reasons. First, the expert evidence in D. (D.) differed materially from Dr. Chamberlain’s evidence in this case. The expert evidence in D. (D.) related only to the significance of delay in disclosing sexual abuse allegations. As summarized by Major J., that expert testified that “the timing of disclosure, standing alone, signifies nothing”, at p. 64. [Emphasis added.] And the reason that delayed disclosure means nothing in and of itself is that, as a matter of law, no adverse inference can be drawn from a complainant’s delay in disclosing the allegations. Major J. put it this way, at p. 66:

The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.) at pp. 408-9; R. v. M. (T.E.) (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).

And further, at pp. 66-67, “[a] delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.”

40Because this principle forms a recognized part of Canadian law, one can easily understand why the Supreme Court found that the information offered by the expert in D. (D.) should have gone to the jury in the form of an instruction from the trial judge. No expert evidence was needed to establish that the delay in the complainant’s disclosure did not by itself impair her credibility. The jury was not permitted to draw an adverse inference from this delay as a matter of law and the trial judge should have instructed them accordingly.

41The present case is very different. Instead of dealing with the relevance of delayed disclosure “standing alone”, Dr. Chamberlain testified to patterns of disclosure among sexual abuse victims, patterns that include not only delays in disclosure but also inconsistencies in disclosure and recantations. Although no adverse inference can be drawn from the mere fact that disclosure is delayed, the same cannot be said for inconsistent disclosures or recantations. Indeed, prior inconsistent statements are typically highly damaging to a complainant’s credibility.

42Thus, there is, quite rightly, no existing principle of law that would prevent a jury from drawing an adverse inference from inconsistent disclosures or recantations by a complainant. But the jury should be allowed to put these inconsistent disclosures and recantations in context. If, as Dr. Chamberlain testified, child victims of sexual abuse often make disclosures marked by delay, inconsistencies, and recantations, then expert evidence may be required to help the jury make an appropriate and informed determination of the complainant’s credibility. Patterns of disclosure among sexual abuse victims do not form a part of the ordinary experience and knowledge of jurors. Expert evidence may well be necessary to help jurors draw the proper inferences, and I conclude that it was necessary in this case.

43In the light of D. (D.), it might have seemed preferable for the trial judge to have dealt with the relevance of delay in a jury instruction, and for the Crown to have limited Dr. Chamberlain’s testimony to the patterns of disclosure involving inconsistencies and recantations. Accepting, however, that Dr. Chamberlain’s evidence was necessary to help the jury understand the significance of the complainants’ inconsistent disclosures and recantations, to restrict him from offering an opinion on the relevance of delayed disclosure would be unworkable. Dr. Chamberlain’s evidence dealt with patterns of disclosure among sexual abuse victims; delays in disclosure form an integral part of those patterns. Dr. Chamberlan’s testimony was properly admitted.

44Second, even if Dr. Chamberlain’s evidence should not have been admitted, its admission caused no substantial wrong. If necessary, I would therefore apply the proviso in s. 686(1)(b)(iii) of the Code. Although the Supreme Court of Canada did not address the proviso in D. (D.) because it had already decided to allow the appeal on another ground, the majority reasons affirm that the jury is entitled to the information on delayed disclosure. The majority said simply that the information should come from the trial judge, not from an expert witness. Major J. stressed, at p. 67, that an important advantage of a jury instruction over expert evidence is that the information “is given by an impartial judicial officer, and any risk of superfluous or prejudicial content is eliminated”.

45Here, though the information on disclosure patterns was given by an expert, Dr. Chamberlain’s evidence was short, balanced and avoided any superfluous or prejudicial content. In both his examination in chief and his cross-examination he emphasized that neither late or inconsistent disclosure nor recantation prove that sexual abuse has occurred. If the admission of his evidence amounted to an error of law, the error did not cause a miscarriage of justice.

46The appellant also contends that the trial judge did not properly instruct the jury on how they could use Dr. Chamberlain’s evidence. I do not agree with this contention. The trial judge quite properly told the jury that if they accepted Dr. Chamberlain’s evidence they could take it into account in assessing the credibility of the complainants, that is in determining whether the complainants fabricated their evidence. But the trial judge cautioned the jury at least three times that they could not use Dr. Chamberlain’s evidence to conclude that sexual abuse had occurred. For example, in discussing Dr. Chamberlain’s evidence, the trial judge told the jury:

However, it is very important that you understand and accept that this evidence cannot be used as confirming that the complaints by young persons of sexual acts performed upon them by Mr. Talbot are in fact true, or are more likely to be true because their conduct fits the so-called pattern described by Dr. Chamberlain. Dr. Chamberlain said himself that the pattern of secrecy, helplessness, denial, disclosure and further denial should not tell you anything about the truth of the matters disclosed.

47And later, in comparing Dr. Chamberlain’s evidence with similar fact evidence, he repeated this caution:

This evidence of Dr. Chamberlain’s was admitted since it may help you, if you accept it, in understanding how one or more young persons might not complain about sexual abuse or might deny sexual abuse. To that extent, Dr. Chamberlain’s evidence may help you to determine the credibility of young persons who now allege various sexual acts performed on them by Mr. Talbot after not complaining or, alternatively, after denying such sexual acts. Such evidence, expert evidence, may explain away a problem with credibility, depending on how you view that evidence. However, that expert evidence cannot be used to bolster or add to the credibility of a complainant, because it cannot be used to say that sexual abuse did, in fact, occur. It is thus distinct from similar fact evidence.

48I would not give effect to this ground of appeal.

4. The failure to give a “clear and sharp” Vetrovec warning

49The trial judge told the jury more than once that they may wish to be cautious before relying on the evidence of P.G. and M.O. because both these complainants had acknowledged committing criminal offences. In the words of the trial judge:

Consider the likelihood of fabrication of that evidence in all of the circumstances, including the backgrounds of P.G. and M.O. and the inconsistencies found in their evidence given before you. If you, as the judges of credibility, applying common sense to the evidence you have before you, feel that caution is appropriate in determining whether to rely upon any of the evidence given to you by either P.G. or M.O., then be cautious. If you determine that caution is required, what that means is that you feel there are risks in accepting as correct the evidence of that witness, bearing in mind the presumption of innocence which applies to Mr. Talbot and the burden of proof resting on the Crown in respect of each count.

It is for you to determine whether such caution is indicated. If you feel it is, it is for you to determine whether there is evidence capable of confirming the evidence to which caution should be applied. It is for you to determine whether any such confirming evidence is sufficient to overcome the degree of caution which you feel is appropriate.

50The appellant submits that this direction was inadequate because it allowed the jury to decide whether they should exercise caution before relying on the evidence. Instead, the appellant submits the trial judge should have given a “clear and sharp” Vetrovec warning, instructing the jury that they must scrutinize carefully the evidence of P.G. and M.O. before accepting it.

51A Vetrovec warning is a special instruction to a jury to help it assess the credibility of an untrustworthy witness whose evidence is important to the case. Ordinarily, a trial judge has discretion whether to give a Vetrovec warning and, having decided to give one, on the nature and strength of the warning. See R. v. Yanover (No. 1) (1985), 1985 3619 (ON CA), 20 C.C.C. (3d) 300 (Ont. C.A.). Some cases, however, require the trial judge as a matter of law to give a strong Vetrovec warning – a “clear and sharp” warning – to the jury about too readily accepting the evidence of an unsavoury witness. See R. v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.).

52I acknowledge that the trial judge in this case did not give the jury a “clear and sharp” warning about the evidence of P.G. and M.O. Therefore, it seems to me that this ground of appeal turns on whether he was required to do so as a matter of law. If not, the diluted warning he did give was well within his discretion and is not reviewable in this court.

53I do not think that a “clear and sharp” warning was required as a matter of law. P.G. and M.O. did have checkered pasts. P.G. had a youth record, M.O. admitted to being a good liar, and both were accomplices in two break and enters. But these considerations do not automatically require a clear and sharp warning about their evidence. And other considerations strongly suggest that a clear and sharp warning was not required. These two complainants were vulnerable. They were both from broken homes, young and living on the street. Because of their backgrounds it is hardly surprising that they had some history of lying and criminal involvement. These histories did not call their credibility into question to the extent that a clear and sharp Vetrovec warning was required. Moreover, the trial judge extensively reviewed for the jury the main parts of their evidence – including its difficulty and inconsistencies – that might adversely affect their credibility. Weighing all these considerations I cannot conclude that a strong Vetrovec warning was required. I would therefore not give effect to this ground of appeal.

5. The similar fact evidence

54The trial judge permitted the Crown to lead similar fact evidence from three witnesses, J.W., J.G. and Kenneth G. Each witness testified that he was in his teens when he met the appellant. And each witness testified that the appellant plied him with alcohol until he became drunk or unconscious. But none of the three witnesses alleged that he was sexually abused by the appellant. The appellant submits that absent an allegation of sexual abuse the “similar” fact evidence was not sufficiently similar and its prejudicial effect outweighed its probative value. Therefore, the appellant argues that the evidence should not have been admitted. Before discussing this ground of appeal I will briefly review the evidence of the three witnesses.

55J.W. testified that when he was 14 years old, M.O. invited him to the appellant’s place on Queen Street to drink and party. The appellant poured him two drinks of vodka and orange juice, and as he poured each one told J.W. to drink up before M.O. got home. After the second drink, J.W. felt drunk and left.

56J.G. is a cousin of P.G. and K.G. When he was 13, his cousin P.G. and M.O. introduced him to the appellant at the appellant’s home on Linsmore Crescent. J.G. went upstairs to the appellant’s living room and began drinking beer. After three beers he became drowsy and passed out on the living room floor. He next remembered waking up in the appellant’s bed wearing all his clothes.

57M.O. testified about the same incident. The appellant had asked M.O. to sleep on the couch because J.G. was sleeping in the appellant’s bed. M.O. asked the appellant whether he had had sex with J.G. The appellant said no because J.G. was “too dirty”.

58Of the three similar fact witnesses, the evidence of Kenneth G. was the most cogent. The defence challenged the admissibility of his testimony. The trial judge ruled that he could testify only about his first meeting with the appellant, which occurred in 1988, well before the incidents alleged in the indictment. ³ The trial judge held that the evidence about this first meeting was admissible to show both the appellant’s knowledge of the stupefying effect of alcohol in a young person and his method of seducing and raping young boys, and to rebut defence suggestions that the complainants had collaborated on and fabricated their evidence.

59Kenneth G. testified that when he was 17 he met the appellant at a job site where they were both doing masonry work. The appellant suggested that they buy a case of beer. The appellant paid for the beer and the two went to Kenneth G’s house to drink it. After drinking four or five beers Kenneth G. passed out. When he awoke, he vomited and passed out again. When he next awoke he found himself in bed with the appellant. The two of them were clad only in their underwear.

60Kenneth G. also testified that he did not know any of the complainants, thus negating any suggestion of collusion on his part.

61The trial judge has broad discretion in ruling on the admissibility of proposed similar fact evidence. Similar fact rulings are therefore entitled to deference on appeal. In this case, although I think it would have been preferable if the proposed similar fact evidence had been excluded, I am not persuaded that the trial judge’s ruling was unreasonable.

62The evidence had some probative value. It showed that the appellant used a consistent method to attract young boys, thus permitting the jury to infer that he used this method with each of the complainants. That inference, if drawn, would support the complainants’ credibility. Balanced against its probative value, the similar fact evidence had little prejudicial effect because it was far less serious than the allegations with which the appellant was charged. I would therefore not give effect to this ground of appeal.

D. DISPOSITION

63Counts 4, 9 and 13 – the counts of anal intercourse that were conditionally stayed – will be quashed. Otherwise, I would dismiss the appeal.

Footnotes

1. 1(1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.)
2. 2Dr. Huyer testified that anal penetration of a child is easier if the child has taken a muscle relaxant like valium.
3. 3The trial judge revised an earlier and broader ruling by restricting Kenneth G.’s evidence to this one incident.