DATE: 20040301 DOCKET: C37493
COURT OF APPEAL FOR ONTARIO
ABELLA, GOUDGE AND GILLESE JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
K.K.
Appellant
Christopher Hicks and Catriona Verner for the appellant
Christine Tier for the respondent
HEARD: January 29, 2004
On appeal from the conviction by Justice T. David Marshall of the Superior Court of Justice dated January 14, 2000 and from the sentence imposed by Justice T. David Marshall dated April 26, 2001.
GOUDGE J.A.:
[1] At his trial the appellant faced six pairs of charges of a sexual nature involving six different complainants.
[2] In total, there were three counts of indecent assault, three counts of gross indecency, two counts of sexual assault, two counts of sexual touching, one count of rape and one count of sexual intercourse with a female between fourteen and sixteen years of age.
[3] On January 14, 2000, after a six week trial, the jury found the appellant guilty of charges in relation to five of the six complainants. In respect of each of these five complainants, one conviction was entered and the second charge was stayed because of the principle against multiple convictions. In addition the appellant was designated a long term offender.
[4] The appellant argues that there were numerous errors in his trial. I need only deal with the most important of these, namely the admission of bad character evidence without a caution against propensity reasoning, and the tendering of reply evidence by the Crown that was both inadmissible and further evidence of bad character. These errors by the trial judge were serious and rendered the appellant's trial unfair. They are not errors to which s. 686(1)(b)(iii) of the Criminal Code can apply. The appeal must therefore be allowed and there must be a new trial. Since these convictions form the foundation for the long term offender designation, it too must be quashed.
[5] The appellant was fifty-one years of age at the time of his trial. He was convicted of sexually assaulting five female complainants in a small community in southwestern Ontario. All the complainants knew the appellant and all but one were related to him. Three of them alleged conduct that took place twenty to thirty years ago, when they were young. These three were a niece of the appellant, F.K., and two of his cousins, E.L. and K.B. The other two complainants were C.H., the six-year-old granddaughter of the appellant's wife, Ms. K., and A.B., an eleven-year-old neighbour. The charges relating to these two complainants concerned alleged events between 1996 and 1998.
[6] The appellant gave evidence in his own defence and denied all of the allegations. He also called a number of witnesses, including his former wife, R.Z., and his present wife, Ms. K.
THE BAD CHARACTER EVIDENCE
(a) The appellant's physical and sexual abuse of R.Z.
[7] R.Z. was not a complainant. She gave evidence for the defence. However, the Crown set the stage for the evidence that the appellant had abused her by raising it first in cross-examination of the appellant:
Q. You were with R.Z. in a number of different places during the course of the first marriage. Right?
A. Yes.
Q. And the first marriage ended in around 1984?
A. Somewhere's around there, I divorced her.
Q. She kicked you out.
A. I divorced her.
Q. She kicked you out, didn't she?
A. I divorced her.
Q. Were you physically abusive to her, sir?
A. We pretty well were both physically abusive to each other when we were drinking.
Q. Were you physically abusive to her?
A. I was to her, and she was to me.
Q. Were you sexually abusive to her?
A. No, I wasn't.
Q. How many times during the first marriage did she leave you?
A. I don't know. I didn't keep count.
[8] The Crown then pursued the subject in cross-examining R.Z.:
Q. Now, would it be fair to say, ma'am, that there were a number of occasions during the course of your being with K.K. that you were physically abused?
A. Yes.
Q. By him.
A. Yes.
Q. And were there also a number of occasions you were sexually abused by him?
A. Yes.
Q. Would it be fair to say, ma'am, that F.K. would have known K.K. was abusive to you?
A. Everybody knew in the family.
Q. Did F.K. know?
A. Yes.
Q. And did E.K. know?
A. Yes.
[9] Before us, the Crown, who was not the prosecutor at trial, argues that this evidence was admissible. She says that since F.K. was cross-examined at length on her failure to complain to Ms. R.Z. (who was the appellant's wife at the time of F.K.'s abuse), this evidence was relevant to demonstrate that F.K. could not be expected to reach out to R.Z., when R.Z. could not even protect herself.
[10] I am very doubtful that this evidence was properly admitted. It was not objected to, nor did the trial judge address its admissibility. Had he done so, it is hard to see how he could have found its probative value more than minimal compared to its obvious significant prejudicial effect. F.K. did not offer her uncle's violence to R.Z. as a reason for not complaining to her, and indeed said she saw R.Z. only about once a week.
[11] However, even if admissible, this evidence clearly required a caution. It portrayed the appellant as a person who physically and sexually abused his wife.
(b) The appellant's sexual relationship with his fourteen-year-old stepdaughter, J.H.
[12] J.H., the daughter of K.K., is the mother of C.H. She was fourteen when she gave birth to C.H. J.H. was not a complainant but was a Crown witness. Again, the subject of the appellant's sexual relationship with J.H. was set up by the Crown in cross-examining the appellant about abusing C.H.:
Q. But wouldn't the reason she wouldn't want to go with you, sir, is that when you brought her there, you abuse her?
A. No, that is not. I never abused that baby, and nobody can say I did, because I never.
Q. Well, I suggest to you, sir, you did.
A. Well, I'm saying that what you read in the papers was wrong. I never abused that baby. I was more of a father to her than her real father. Her real father has never, ever seen her.
Q. You're not her real father?
A. No, I'm not.
Q. What is your relationship to J.?
A. What's my relationship with J.? At one time she was one of my stepdaughters. I had to look after her when I was with K., and she always had no money for cigarettes or anything like that. But then I found out that she was just out drinking, doing drugs and everything, so I just had nothin' more to do with her. I talked to her, that's all.
Q. Nothing more to do with her.
A. No.
Q. Didn't you have sex with her?
A. No, I didn't.
Q. Did you ever have arguments with Ms. K. about what you were doing with J.?
A. What I was doing with J.? She accused me of something that I was not doing. I never did nothin' with J.
[13] The Crown then pursued the subject in his cross-examination of Ms. K. He moved deliberately from asking Ms. K. about the appellant's opportunity to bathe C.H. into the area of "what kind of fellow we're talking about":
Q. This time though, ma'am, at least my recollection and note is that you suggested there were times he actually bathed her. Didn't you say that this morning?
A. I don't know. I may have.
Q. And did you mean to say that?
A. I imagine though he probably did. To her, that was her daddy. That was my husband. I believed, I trusted him.
Q. Um hmm.
A. Like, I don't know the K.K. that you's are talking about. I don't know how I'm supposed to.
Q. You…you might have gotten a clue from what J. told you about K.K., what kind of fellow we're talking about. Do you remember J. talking to you about K.K.
MR. CORNISH: You have to answer with words, ma'am.
A. Yes.
Q. Do you want a break?
Q. Ma'am, when J. was fifteen years old, that was in 1995?
A. Yes.
Q. You were living on O. Street.
A. Yes, I was.
Q. And J. was there with you.
A. Off and on.
Q. Off and on. Do you remember, on one occasion, when J. was over, J. being upstairs and K.…actually K.K. was with her, and he slapped her on the butt, and she laughed. You looked directly at him, and said"What the fuck are you doing?"
And they both said"Nothing" to you.
A. Yes.
Q. And then after K. left, K.K. left, you spoke to J. and asked what was going on. Right?
A. Yes, I did.
Q. And she said"K. does things to me." Right?
A. Yes.
Q. And you said"You mean, sexually abusing you?" Do you remember asking her that?
A. Yes.
Q. And she said"Yeah." Do you remember her saying that?
A. Yes.
Q. And then you asked if it was abuse or was she a willing participant. Do you remember that?
A. Yes, I do.
Q. And after you said that to her, she stopped talking. Right?
A. Yes, she did.
[14] The Crown argues that this evidence was admissible to challenge Ms. K.'s credibility and also to explain why J.H. did not complain to her mother about her concerns over C.H. Again, there was no objection at trial, nor any ruling on its admissibility. Again, however, I am very doubtful that this evidence was admissible. Its probative value is dubious, particularly the suggestion that the appellant had fathered his fourteen-year-old stepdaughter's child. On the other hand, its very serious prejudicial effect is hard to overstate. However, if admitted, at the least it warranted a significant caution in the judge's charge because of the kind of person it portrayed the appellant to be.
(c) The appellant's additional sexual assault on F.K.
[15] F.K. was a complainant. In cross-examining R.Z., the Crown adduced evidence that the appellant had sexually assaulted F.K. on a date outside those encompassed by the indictment:
Q. And I believe you described to the officers in the video statement that F.K. appeared to be one of his favourites.
A. Yes.
Q. And you say that because he used to pay a lot of attention to her. Is that right?
A. Yes. Everyone called her "baby" though, was her nickname.
Q. Baby. And at one point, you saw him…you saw a hickey on F.K.
A. Yes. It wasn't only myself that saw it. Like, it was at a picnic, and they were kidding around, and like"Who put that on your neck?" and she said"K." and then they said they were just fooling around.
Q. And you confronted K.K. about the hickey?
A. He was right there when I said it.
Q. And did he deny giving her the hickey?
A. No.
Q. And when we're talking about a hickey, that's where you put your mouth on somebody and suck, and make a bruise on the neck. Right?
A. Yes.
Q. And you also referred to it as a love mark.
A. Yes.
Q. How old was F. when you saw that?
A. She was a teenager. I don't really recall how old.
Q. Would you agree about thirteen or fourteen?
A. Could 'a been.
[16] Once again, even if this evidence was admissible, it was another example of the bad character evidence that required an instruction from the trial judge in his charge to the jury.
(d) The appellant as a drinker and womanizer
[17] The Crown also elicited evidence of the appellant's general bad character in cross-examining the defence witness Lois Maracle:
Q. Do you remember talking to R.Z. about the reason why you left K.K.?
A. Because of his drinking, yes.
Q. Well, I'm not asking you particulars of it, but I am going to suggest to you that you told her that you left him because you were concerned about his conduct with others.
A. Well, he is a womanizer, he does run around, and he did run around on me.
[18] It is equally hard to see the possible relevance of this evidence. In any event, it is but another piece of bad character evidence that made necessary an instruction to the jury concerning propensity reasoning.
THE REPLY EVIDENCE
[19] In reply, the Crown called A.K., a daughter of R.Z. It elicited from A.K. evidence designed to rebut the appellant's denial of having sexual relations with J.H. The evidence that J.H. had slept with the appellant at his house was clearly collateral to any issue before the court and on that basis alone, apart from any other, was inadmissible reply. Moreover, it was further evidence of the appellant's bad character. Despite the absence of an objection, the trial judge erred in admitting it. In addition, it further exacerbated the error of failing to warn the jury about propensity reasoning.
ANALYSIS
[20] In his charge, the trial judge did not refer to any of this evidence. He gave the jury no instruction about the danger of propensity reasoning. Before us, Ms. Tier fairly conceded that a limiting instruction should have been given, but argued that no substantial wrong had resulted.
[21] I do not agree. Assuming this evidence is admissible, it carries the potential of significant prejudicial effect that cannot be ignored. An instruction was required that this evidence not be relied on as proof that the appellant is the sort of person who would commit the offences charged and that he not be found guilty on that basis. See R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697 at 707-708.
[22] Moreover, the failure of defence counsel to object to the absence of such a caution (or to the admissibility of the evidence at all) cannot be determinative either of the gravity of the omission or of the consequences that should be attached to it. See R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293 at 1319-20. Indeed, it is arguable that where, as here, the error relates to a nondirection on an important legal principle, the failure to object at trial will have much less significance in determining the merits of this ground of appeal. See R. v. Harriott (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1 (C.A.) per Doherty J.A. dissenting.
[23] In this case there are a number of factors that compel the conclusion that the omission of a caution was a serious error that rendered the appellant's trial fatally unfair.
[24] First is the nature of bad character evidence itself. Here, it painted a picture of the accused as the kind of person who physically and sexually assaulted those close to him, perhaps to the point of incest. In the context of these charges this was extremely prejudicial.
[25] Second, the Crown's address to the jury used a theme that enhanced the risk of propensity reasoning:
[T]here is a rope in this case, and it is a rope that's comprised of strands of thread, as all ropes are. The strands are the evidence, and the evidence provides the facts. The facts show this man sexually abused six girls.
You have heard evidence of despicable acts, of a sexual nature, that six separate girls have had forced upon them by this man. They have each come forward and told, as best they could, what this man did to them.
Once you have considered the whole body of the evidence in this case, I submit to you that there is no room for any reasonable doubt, as to the fact that this man sexually assaulted C.H., sexually assaulted A.B., and then raped E.L., indecently assaulted and committed acts of gross indecency in respect of K.B., E.K., and her sister F. And those are the charges, just briefly running through them.
[T]here are themes that each of the complainant's evidence is supported by other evidence that you have heard, and after I deal with that, the next theme in dealing with the evidence is that there is no conspiracy on behalf of the J.s to get K.K., in order to advance their claim to custody of C. And the other theme is, and this comes from dealing with each of the witnesses in the supporting evidence of other witnesses, the strength of this case comes by virtue of the diverse sources of evidence, apparently unconnected one from another, because you will see, in my submission, when you look to the evidence, that a witness in respect of one case, also provides some assistance on what another case was all about [emphasis added].
[26] The Crown's closing proposition exemplified the problem by returning to the fundamental metaphor:
There is a rope, and this evidence that binds K.K. to his misdeeds. Don't ignore the rope.
[27] Third, the trial judge failed to instruct the jury that suggestions by counsel not adopted by the witness cannot be taken as evidence. While the trial judge had agreed beforehand with counsel that he would give this instruction, he did not do so. When he himself noted this omission some three and one half hours after the jury retired, both counsel agreed that by then it was too late. However, particularly in light of the suggestions made by the Crown in cross-examining the appellant, this omission simply exacerbated the risk that the jury might engage in propensity reasoning.
[28] The final circumstance that makes the absence of a caution concerning bad character evidence such a serious error in this trial relates to the number of different charges that were tried together.
[29] The appellant faced six pairs of charges involving six complainants. Four of them were historic, separated from the other two by several decades. The appellant had originally elected trial by judge alone and sought separate trials at least of the historic charges and the contemporary charges. He was unsuccessful. Shortly before the trial, the appellant sought to re-elect trial by judge and jury and agreed to abandon any further claim for severance in exchange for the Crown's consent to his re-election. At the conclusion of the evidence, the trial judge dismissed the Crown's application to have the evidence relating to each count treated as similar fact evidence for the other counts.
[30] In these circumstances, while I think it would have been preferable to separate these counts into two trials (one of the historic complaints and the other of the contemporary complaints), it was within the trial judge's discretion to proceed as he did.
[31] Having done so, however, his charge had to take full account of the risks involved. The trial judge did warn the jury that they should not use the evidence of one count as evidence on the other counts. However, the trial judge should have gone further. The large number of complaints of serious criminal conduct of a sexual nature together with the dismissal of the similar fact application and the evidence of uncharged misconduct made it essential that the jury be cautioned about propensity reasoning. In R. v. M.(B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1 (C.A.) Rosenberg J.A. was also dealing with a case involving multiple sexual offences. He drew on the reasoning of Sopinka J. speaking for the Supreme Court of Canada in R. v. Rarru, 1996 195 (SCC), [1996] 2 S.C.R. 165 in describing the need for such a caution in these circumstances. Rosenberg J.A. said this:
[41] Thus, in a case involving multiple counts and complainants, and where evidence is led of other uncharged misconduct, Sopinka J. identified two essential elements of a charge to the jury. First, when evidence of one count is not admissible as similar fact evidence on the other counts, jurors must be instructed to consider each charge separately and not to use evidence relating to one count as evidence on any of the other counts. In this case, the jury charge does not include this essential element. The charge does not clearly explain to the jurors that they could not use the evidence of all the counts to prove any one count.
[42] Second, Rarru requires the trial judge to give the jury a proper limiting instruction regardless of whether evidence of other counts or of uncharged misconduct is admissible as similar fact evidence. The jury charge also fails to meet this standard. Even if the evidence of the various counts had been admissible as similar fact evidence, a limiting instruction was required. The jury had to be warned about misuse of the evidence of criminal and disreputable conduct. I have already referred to this issue in relation to the bestiality counts. It was essential that the jury be instructed that it was not to rely on the evidence of other counts or other uncharged misconduct as proof that the accused is the sort of person who would commit the offence or offences charged.
[32] For the reasons I have described these errors were serious. They apply to all the charges of which the appellant was convicted. Taken together they render his trial unfair. I cannot agree with the Crown that s. 686(1)(b)(iii) can be applied. The appellant's conviction is set aside and a new trial is ordered. As a consequence, the finding of long term offender must be quashed as well.
Released: March 1, 2004 "RSA"
"S.T. Goudge J.A." "I agree R.S. Abella J.A." "I agree E.E. Gillese J.A."