R. v. B.(C.), 2003 CanLII 32894 (ON CA)

W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.

DATE: 20030109

DOCKET: C37093

COURT OF APPEAL FOR ONTARIO

LABROSSE, MOLDAVER and FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Susan Magotiaux

for the respondent

Respondent

• and -

C. B.

Clayton C. Ruby

for the appellant

Appellant

Heard: December 2, 2002

On appeal from the convictions imposed by Justice D. S. Ferguson of the Superior Court of Justice, sitting with a jury, dated February 19, 2001 and from the sentence imposed dated October 12, 2001.

BY THE COURT:

1The appellant was convicted after trial by judge and jury of one count of indecent assault involving his daughter, D.L., and one count of sexual assault against his granddaughter, J.H. He was sentenced to two consecutive six-month conditional sentences, with conditions that he attend counselling, that he not leave his residence except for certain limited purposes, and that he not receive visitors, except blood relatives and his minister. He appeals against his conviction and sentence.

CONVICTION APPEAL

2Of the various grounds of appeal raised by the appellant, we are satisfied that the trial judge’s instructions to the jury on the rules governing the use and application of similar fact evidence were deficient. In particular, we believe that the trial judge failed to give an adequate limiting instruction on the use the jury could make of the similar fact evidence and he further failed to instruct the jury on the issue of collusion. In view of this, the convictions cannot stand and a new trial must be ordered. For this reason, we do not intend to recite the facts in detail.

OVERVIEW

3The appellant was charged in 1999 with one count of indecent assault against his daughter D.L., and one count of sexual assault against his granddaughter J.H. J.H. is D.L.’s daughter.

4The charge relating to D.L. was historical in nature, dating back to 1969 when D.L. was thirteen years old. According to D.L., from 1969 to 1973, when she was in her teens, the appellant repeatedly massaged her in a sexual fashion. In her testimony, she was able to recall four specific incidents in which the appellant, while purporting to massage her, engaged in various forms of sexual misconduct such as lifting her top, touching her bare back, sides, and stomach, pulling her bra straps down, and on one occasion, pressing his erect penis against her back.

5The charge of sexual assault involving J.H. is much more recent. It relates to an incident in 1999 when J.H., who was then nineteen years old, slept over at the appellant’s home one night.

6According to J.H., on the night in question, the sexual activity commenced when the appellant knelt down in front of her while she was watching television and began massaging her legs and upper thighs. Later that evening, after she had gone to bed, she stated that the appellant entered her room, got into bed beside her, rubbed her bare back, upper thighs, and buttocks, and kissed her several times on the back of her neck.

7While that incident forms the basis of the sexual assault charge, J.H. was permitted to give similar fact evidence about two earlier incidents, one when she was age nine and the other age thirteen, in which the appellant rubbed her stomach and legs and pressed his erect penis against her back.

8In addition to the similar fact evidence presented by J.H., two of the appellant’s other daughters, J.S. and S.S., were also permitted to give similar fact evidence. Both daughters testified about receiving massages of a sexual nature from the appellant and both related incidents in which the appellant placed his erect penis against their backs.

9The appellant testified on his own behalf. He readily admitted to massaging his daughters and his granddaughter but claimed that the massages were friendly, given out of love, and non-sexual in nature.

10Apart from the similar fact evidence, which, if believed, portrayed the appellant as a person of bad character, the Crown led additional evidence from D.L. and J.H. which also placed him in a bad light. That evidence, which the trial judge accurately recognized as extrinsic evidence of bad character, related in part to the appellant’s conduct towards D.L. and J.H. after he had been charged. In relation to D.L., the appellant (on the advice of counsel) terminated her from her senior position at his company; in J.H.’s case, the appellant stopped paying her university tuition. As a result of the appellant’s alleged sexual misconduct towards D.L. and J.H., as well as his termination of D.L. from the business, D.L. and J.H. commenced a civil action against him seeking substantial damages. That action was outstanding at the time of the criminal trial.

11Against this backdrop, we turn to the trial judge’s instructions on the similar fact evidence adduced by the Crown.

FAILURE TO PROVIDE AN ADEQUATE LIMITING INSTRUCTION

Opening Remarks to the Jury

12In his opening remarks to the jury, the trial judge explained a number of legal principles. In doing so, he indicated that “during the trial and again at the end of the trial”, he would provide “more specific and detailed instructions about the rules of law that apply to this case.”

13With respect to the similar fact evidence that had been ruled admissible prior to the selection of the jury, the trial judge instructed the jury in some detail about the rules governing its use and misuse. Those instructions are reproduced in full below:

Sometimes our law allows jurors to consider evidence only for a specific purpose in deciding a case. If that happens here I will tell you how you may use the evidence in deciding this case. I may tell you when you hear the evidence but I will certainly tell you at the end of the evidence before you go out to deliberate. You must consider such evidence only for the purpose that I describe. You must not consider or use it for any other purpose.

In this case the Crown is going to call some women witnesses in addition to the two women named in the charges you are trying. Those other witnesses are relatives of the two alleged victims in this case and are expected to say that [C.B.] also touched them in a sexual manner.

In addition to telling about the incidents which are the subject of the charge it’s anticipated that the two alleged victims named in the charges may tell you about other incidents which you may think are similar to those included in the charges.

It is important at the outset that you understand how you may use this evidence and how you may not use it. First, the other incidents related by the witnesses are not matters with which [C.B.] is charged with. If you conclude he did the other acts you must not punish him for it by finding him guilty of the offenses before the court. You may not use this evidence as a basis to conclude that [C.B.] is a bad person and therefore reason that that makes it likely he committed the offenses in the charges before the court.

If you find the incidents as described by the witnesses did happen and if you find that they have a significant similarity to the incidents which are charged in the two charges before the court then you may but are not required to use the evidence of the other incidents for these purposes as evidence which may tend to show that the alleged victims named in the two charges are telling the truth. Secondly, as evidence that the touching alleged in the two charges was done for a sexual purpose.

14Pausing here, to the extent that the trial judge chose to provide this type of instruction to the jury in his opening remarks, we find nothing objectionable in what was said.

15The trial judge did not restate these instructions or provide any further instructions at the time the similar fact evidence was admitted into evidence.

The Charge

16The trial judge devoted almost one-quarter of his sixty-page charge to the similar fact evidence. He began his instructions on this subject by reminding the jury that the appellant was on trial only for the offences in the indictment and he summarized the key issues that the jury would need to consider in determining whether those offences had been made out. He then referred to the similar fact evidence and, after cautioning the jury that the appellant was not on trial for “that other conduct”, he continued as follows:

… Be careful not to jump to the conclusion that just because the acts appear similar the offenses charged must have taken place.

You can consider other similar conduct for two purposes. First, to assess the credibility of [D.L.] and [J.H.] as to what they say happened. Second, to determine whether the touching was indecent or of a sexual nature.

You may but do not have to find that there is a pattern of similar behaviour that confirms the testimony of [D.L.] or of [J.H.] that the offenses took place. It is for you to say. In considering this evidence bear in mind the relationship between [C.B.], [D.L.], [J.H.] and the witnesses who testified about the other conduct, as well as the circumstances of each situation.

17The trial judge then devoted the next ten pages of his charge to a thorough review of the similar fact evidence, following which, he directed the jury to look for similarities in the incidents in deciding whether “a pattern of similar behaviour exists.” After reviewing some of the similar features in the evidence given by the various witnesses, he ended his instructions with the following admonitions to the jury:

You must be careful not to jump to the conclusion that because one complainant is telling the truth the person named as the victim in the charge is telling the truth. Nor must you jump to the conclusion that because all of the complaints allege similar conduct they must have all occurred. It is up to the Crown to prove each charge independently.

Whether or not you use the evidence of the other conduct to help you decide this case, you must not find [C.B.] guilty of any offence unless the Crown counsel has satisfied you of all the essential elements of that offence beyond a reasonable doubt.

18Later in the charge, the trial judge dealt separately with the evidence surrounding D.L.’s termination from the appellant’s business and the appellant’s refusal to pay J.H’s university tuition. Recognizing that that evidence might cause the jury to view the appellant in a bad light, the trial judge cautioned the jury about its use in these terms:

During the trial both sides introduced evidence about conduct of [C.B.] which might be considered by you to be misconduct. For instance, you heard evidence of how [C.B.] and his wife separated, how the children came to live with [C.B.] and the grandparents, what happened at C.C. Marine involving pranks, the disputes at work among the daughters and how [C.B.] fired one or more of them, the dispute that arose about [D.L.’s] absence and her termination, the evidence about not paying for [J.H.’s] university.

This evidence can be used by you in assessing the credibility of the women and [C.B.]. You must not consider this evidence as showing that [C.B.] was of bad character and from that, reason that he was more likely to have committed the offenses as charged in this case [emphasis added].

Objections to the Charge

19Both defence and Crown counsel objected to the instructions on similar fact evidence. Each maintained that the trial judge had failed to warn the jury that they must not use the similar fact evidence to show that the appellant was a person of general bad character and for that reason, more likely to have committed the offences for which he was charged.

20The trial judge refused to give effect to the joint objection. In his view, once it was accepted that the similar fact evidence was admissible to show a pattern of behaviour which the jury could use to infer that the appellant’s conduct was both intentional and committed for an improper purpose, the bad character instruction would make it “hard [for the jury] to distinguish that from the permissible use.” The trial judge further indicated that in deciding to leave matters as they stood, he had used the wording of the model instructions recently released by “a team of judges and counsel from across Canada.”¹

Analysis

21In order to assess the adequacy of the instructions given by the trial judge, it is necessary to step back and consider the dangers associated with the admission of similar fact evidence where, as in this case, that evidence takes the form of prior bad acts. The dangers in question were summarized succinctly by Cory J. in R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 at 339 (S.C.C.) as follows:

As Sopinka J. noted 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, there are three potential dangers associated with evidence of prior bad acts: (1) the jury may find that the accused is a “bad person” who is likely to be guilty of the offence charged; (2) they may punish the accused for past misconduct by finding the accused guilty of the offence charged; or (3) they may simply become confused by having their attention deflected from the main purpose of their deliberations, and substitute their verdict on another matter for their verdict on the charge being tried. …

22Of particular concern in the case at hand are the prohibited lines of reasoning identified in the above passage as the first and second dangers.

23With respect to the first danger, the concern is that the jury might rely on the similar fact evidence to convict the appellant on the basis that he is a man of general bad character and therefore more likely to be guilty of the offences charged. With respect to the second, the concern is that the jury might convict the appellant for the offences charged out of a desire to punish him for prior misconduct, especially as here, where the earlier misconduct has gone unpunished.

24In Arp, supra, at p. 353, Cory J. pointed out that the danger that a jury will engage in the prohibited lines of reasoning “is avoided by the strict test for admissibility which ensures that the evidence is sufficiently probative to outweigh the risk of prejudicial misuse, coupled with a cautionary instruction against making improper use of the evidence” [emphasis added]. At p. 356, Cory J. identified the type of cautionary instruction that should be included in “a proper charge” where, as in Arp, the similar fact evidence is admitted to prove identity on a multi-count indictment. The instruction is fifth in a list of seven factors to be included in the charge and reads as follows:

(5) The jury must be warned that they are not to use the evidence on one count to infer that the accused is a person whose character or disposition is such that he or she is likely to have committed the offence or offences charged in the other count or counts.

25Manifestly, the cautionary instruction envisaged by Cory J. is not limited to cases in which the similar fact evidence is introduced to prove identity in a multi-count indictment. On the contrary, this court and the Supreme Court of Canada have repeatedly stated that this type of cautionary instruction must be given to the jury in all cases where the dangers associated with “bad personhood” reasoning exist. (See for example R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 at 249 (S.C.C.); R. v. D.(L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111 at 127-28; R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697 at 733-34; R. v. M. (B.) (1998), 1998 13326 (ON CA), 130 C.C.C. (3d) 353 at 370-71 (Ont. C.A.); R. v. W. (L.K.) (1999), 1999 3791 (ON CA), 138 C.C.C. (3d) 449 at 471-72 (Ont. C.A.) and R. v. McDonald (2000), 2000 16871 (ON CA), 148 C.C.C. (3d) 273 at 291-92 (Ont. C.A.).)

26With respect, we are of the view that the impugned instruction (which is reproduced below for convenience) falls short of the mark:

You must be careful not to jump to the conclusion that because one complainant is telling the truth the person named as the victim in the charge is telling the truth. Nor must you jump to the conclusion that because all of the complaints allege similar conduct they must have all occurred. It is up to the Crown to prove each charge independently.

Whether or not you use the evidence of the other conduct to help you decide this case, you must not find [C.B.] guilty of any offence unless the Crown counsel has satisfied you of all the essential elements of that offence beyond a reasonable doubt.²

27Commencing with the first danger, that the jury will reason to guilt through general disposition, we do not think that the impugned instruction addresses that concern. This part of the instruction is important for another purpose. It reinforces for the jury the fact that even if they accept and rely upon the similar fact evidence, it is only one piece of

evidence and it must be weighed, with the other evidence, in assessing guilt or innocence. They must not use it to “jump to” a conclusion of guilt. As for the second danger, that the jury will convict to punish the appellant for prior bad acts, especially acts which have gone unpunished, the instruction is silent.

28The concern expressed by the trial judge about the cautionary instruction is that the jury could view it as contradictory of the permissible use the jury was entitled to make of the similar fact evidence (a pattern of behaviour which the jury could use to infer that the appellant’s conduct was both intentional and committed for an improper purpose, see paragraph 20 above). While we appreciate the trial judge’s concern, we are respectfully of the view that it fails to take into account the difference between specific and general propensity reasoning, as explained by the Supreme Court of Canada in R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.), and in R. v. Shearing, supra. In those cases, the Supreme Court explained that propensity reasoning, in and of itself, is not prohibited. What the jury is not entitled to do is engage in general propensity reasoning, that is, to conclude from the accused’s past conduct that the accused is a disreputable or generally bad person, and for that reason, is more likely to have committed the offence or offences charged. In fairness, we note that the trial judge did not have the benefit of those decisions at the time of trial.

29In addition to the problem identified, we note that nowhere in the instruction is the jury told that they must first be satisfied that the similar acts occurred before any use can be made of them. In our view, that too is a serious deficiency.

30Before this court, Crown counsel took the position that to the extent the instructions in the charge were found to be deficient, the error should be treated as harmless because of the instructions given to the jury by the trial judge in his opening remarks.

31With respect, we disagree. The opening remarks, given in the course of twenty-four pages of opening instructions without an evidentiary context, had little chance of being remembered by the jury seven days later when they began their deliberations.

32Apart from the time lag between the opening remarks and the jury deliberations, there is another reason for rejecting the Crown’s “no harm” submission. As pointed out earlier, in his charge, the trial judge directed the jury to other evidence that portrayed the appellant as a person of bad character (terminating D.L. from his place of business and refusing the pay J.H.’s university tuition) and he instructed the jury, in clear terms, that they could “not consider this evidence as showing that [C.B.] was of bad character and from that, reason that he was more likely to have committed the offences as charged in this case.” In our view, that instruction, while correct, only served to exacerbate the failure to give a similar warning in relation to the similar fact evidence, especially in these circumstances where the similar fact evidence was far more extensive and potentially prejudicial to the appellant. (See R. v. N. (R.K.) (1997), 1997 1271 (ON CA), 114 C.C.C. (3d) 40 at 47 (Ont. C.A.)).

33Before leaving this issue, we think it might be helpful to comment briefly on the nature and extent of the cautionary instruction that should be given to best address the two dangers of concern outlined above.

34To date, the cautionary instruction given to juries has generally taken the form suggested by Cory J. in R. v. Arp, supra, at p. 356 (see paragraph 24 above). That instruction, which essentially tells the jury that they must not use the similar fact evidence to infer that the accused is a person likely, by reason of his or her general bad character, to have committed the offence or offences charged, is clearly acceptable. In our view, however, it tends to focus more on the first danger (reasoning to guilt through general disposition) than on the second danger (convicting on the offences charged to punish the accused for prior misdeeds).

35Accordingly, in the future, when cautioning the jury about the misuse of similar fact evidence, we think it would be preferable for trial judges to give the jury the double warning: (1) that they may not use the similar fact evidence to reason from general disposition or character to guilt, and (2) nor may they use it to punish the accused for past misconduct by finding the accused guilty of the offence or offences charged.

COLLUSION

36There was evidence that the witnesses had had some discussions and opportunities for communication with each other regarding the events complained of. J.H., the granddaughter of the appellant, told her mother, D.L., about the events of August 16, 1999 on the following day, whereupon D.L. told her, for the first time, about her experiences with the appellant. At that time, J.H. also told her mother about her prior experiences with her grandfather. Although D.L. did not believe she had told anyone else about the incidents with her father, her sister J.S. thought that she had discussed the matter with her sisters D.L. and S.S. when they were growing up. J.S. also said she spoke with J.H. and S.S. before she spoke to the police. S.S. also testified that she discussed the incidents with her sisters J.S. and K.W.

37The appellant submits that the trial judge erred by failing to instruct the jury that, as part of their assessment of whether they would put any weight on the similar fact evidence, they must consider the possibility of collusion among the witnesses and the effect of any collusion on the similarity and coincidence of the details of the similar fact evidence.

38In R. v. Handy, supra, the Supreme Court of Canada clarified how a trial judge is to deal with the problem of collusion when assessing the admissibility of similar fact evidence, and after deciding to admit the evidence, instructing the jury. Binnie J. first explained the importance of collusion as a factor to be considered by the trial judge in deciding whether to admit the similar fact evidence. He stated at para. 110:

… Cogency is derived from the improbability of coincidence. Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends.

39As part of the gatekeeping function, the trial judge must be satisfied, on a balance of probabilities, that the similar fact evidence is reliable. Therefore, “where … there is some evidence of actual collusion, or at least an ‘air of reality’ to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth” (para. 112).

40Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. In this case there was evidence of, or at least the opportunity for collusion in the various discussions regarding the incidents reported by the complainants. Furthermore, taken together with the anger regarding the dismissal and pay issues between one complainant and the appellant and the joint lawsuit by the complainants for damages, there was clearly an air of reality to the possibility of collusion in this case.

41It was therefore incumbent on the trial judge, in considering the admissibility of the similar fact evidence, to determine whether he was satisfied on a balance of probabilities that the evidence was not tainted by collusion. In his ruling admitting the similar fact evidence, the trial judge did specifically refer to the fact that the witnesses had discussed some of the evidence with each other.

42However, having admitted the evidence, the trial judge gave the jury no assistance as to its role in considering the possibility of collusion when assessing the similar fact evidence. The problem was compounded by Crown counsel’s jury address in which she suggested that there had been no collusion among the witnesses and therefore their allegations about the appellant must be true.

43In R. v. Shearing, supra, the facts regarding the possibility of collusion were remarkably similar to those in the case at bar. Some of the complainants in respect of the alleged sexual assaults had been in touch with each other prior to the trial and, as in this case, civil proceedings had been commenced. The Supreme Court of Canada referred with approval to the trial judge’s instructions to the jury on the collusion issue in that case as follows:

… [the trial judge] instructed the jury to consider “all of the circumstances which affect the reliability of that evidence including the possibility of collusion or collaboration between the complainants”. He defined collusion as the possibility that the complainants in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar and more convincing. It was for the jury to make the ultimate determination whether the evidence was “reliable despite the opportunity for collaboration” or that “less weight or no weight should be given to evidence which may have been influenced by the sharing of information” (para. 44).

44In this case, it was incumbent on the trial judge to alert the jury in a similar way to their duty to consider the possibility of collusion when assessing what effect to give to the similar fact evidence that they had heard.

45We are of the view that the trial judge was in error in failing to instruct the jury on the issue of collusion.³

OTHER GROUNDS OF APPEAL

46The appellant raised a number of other issues which we do not propose to address. Suffice it to say that in our view, none amounted to reversible error.

47Accordingly, the appeal from conviction is allowed, the convictions are set aside and a new trial is ordered. In view of this conclusion, we make no comment about the sentence.

Signed: “J. Labrosse J.A.”

Footnotes

1. 1Justice Ferguson was referring to the model instructions found at: Part III: Final Instructions, ss. 28C and D, Justice David Watt, Ontario Specimen Jury Instructions (Criminal), CD-ROM: (Toronto: Thomson-Carswell 2002).
2. 2We note that the second paragraph of the impugned instruction matches up with item 7, not item 5, of the list of factors identified by Cory J. at p. 356 of Arp, that should be included in a proper charge.
3. 3It will be for the trial judge at the new trial to assess admissibility in accordance with the principles set forth in Handy, supra.