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:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
COURT OF APPEAL FOR ONTARIO
WEILER, GOUDGE and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Timothy E. Breen
for the appellant
(Respondent)
- and -
J. F.
Eliott Behar
for the respondent
(Appellant)
Heard: May 30, 2006
On appeal from the conviction entered on April 11, 2002 and the sentence imposed on July 5, 2002 by Justice Nancy M. Mossip of the Superior Court of Justice, sitting with a jury.
WEILER J.A.:
Nature of the Appeal
1Following a trial before a judge and jury, the appellant was convicted of one count of sexual exploitation in relation to each of K.P. and A.P. He was also convicted of one count of sexual assault in relation to A.P. but acquitted of sexual assault in relation to K.P. He has served his sentence of 33 months and therefore appeals only his conviction. Although the trial judge provided her charge to the parties beforehand and no objections were raised following the charge, the trial judge’s charge to the jury forms the basis for the first three grounds of appeal. Notwithstanding the absence of objection, I am of the opinion that the trial judge’s charge to the jury reveals two errors. The trial judge failed to provide the jury with a limiting instruction concerning the use that could be made of the complainants’ prior consistent statements. Further, the trial judge failed to caution the jury that the complainants’ mother’s belief as to their truthfulness could not be used to bolster their credibility. The combination of these two errors leads me to conclude that a new trial must be ordered. I would not give effect to the ground of appeal respecting after‑the‑fact conduct or to the submission that the verdicts are unreasonable because they are inconsistent.
Background
2The complainants, K.P. and A.P., are twins. The appellant, J.F., is their stepfather. On September 7, 2000, they told their mother that the appellant had sexually assaulted them in the past. They were 19 years old at the time of the complaint. Their mother took them to the police station and they reported the matter to the police. On the advice of the police, they packed a bag, left their home and went to a nearby motel. The appellant was arrested on September 8, 2000.
3K.P. reported that she had been sexually abused by the appellant over a hundred times but recalled only certain specific events. She testified that:
when she was 8 years old, the appellant asked her to remove her bathing suit;
when she was 15 years old (and residing with her family in Scotland), the appellant went to her room and tried to remove her clothes, and, on two other occasions, made her touch his penis; and
from 1996 to August 2000, on many occasions the appellant attempted to have sexual intercourse with her (but was not successful) and would instead put his penis in her mouth.
4A.P. reported that the appellant began sexually abusing her when she was 16 years old. Between December 1996 and January 1998, A.P. testified that the appellant would climb into bed with her in the morning and touch her breasts and vaginal area under her clothing. A.P. said she did not know how many times the appellant assaulted her in this way. Between January 1998 and August 2000, A.P. testified that the appellant had forced intercourse with her. She said that she could not remember how many times or when these incidents occurred. During re-examination she added another instance of abuse to her testimony that had not been mentioned previously.
5The appellant was charged with two counts of sexual assault and two counts of sexual exploitation. The appellant’s defence was that the allegations of sexual abuse were made up by the complainants to avoid them being evicted from the house and to secure the removal of the appellant instead. On September 5, 2000, the appellant and K.P. argued about K.P.’s decision to leave her studies and go work in a factory where her mother was employed. The appellant testified that he told K.P. that since she was now working, she should find her own place and A.P. might as well go too. The appellant also asserted that the complainants were more physically fit and taller than he was, and that he had physical difficulties that would make him incapable of doing the acts of which he was accused.
6In response to the defence suggestion of recent fabrication, the Crown called J.P., a co-worker of K.P.’s at McDonald’s. She testified that on one occasion in the spring of 2000 K.P. handed her a note that disclosed that she had to sleep with her stepfather if she wanted to go out with a boy.
Issues:
(1) Did the trial judge err in failing to direct the jury as to the relevance and limited use of evidence of prior consistent statements?
7It is trite law that evidence that a witness made statements consistent with her testimony is ordinarily inadmissible because that evidence is either self‑serving in that it attempts to bolster the witness’ credibility or it is hearsay. Also, the repetition of a prior consistent statement may give it false credence: see David M. Paciocco & Lee Stuesser, The Law of Evidence, 4th ed. (Toronto: Irwin Law, 2005) at 445. In this case, the appellant conceded in oral argument that prior consistent statements made by the complainants to their mother were properly admitted under the narrative exception to the rule to provide chronological cohesion and background to the jury. The appellant submits, however, that the trial judge was obliged to instruct the jury that the statements were not admissible for the truth of their contents. In relation to the evidence of K.P.’s co‑worker, J.P., the appellant conceded that the evidence she gave respecting a note K.P. gave her was properly admitted to rebut an allegation of recent fabrication and that the trial judge correctly told the jury that was the purpose of the evidence. The appellant submits, however, that the trial judge was obliged to further instruct the jury that the contents of the note K.P. wrote to J.P. could not be used by them as proof of the sexual abuse alleged: R. v. Wait (1994), 1994 8757 (ON CA), 69 O.A.C. 63 at 65 (C.A.).
8I agree that in these circumstances the trial judge was required to give a limiting instruction. Here, the trial judge, after advising the jury that the note to J.P. could be used to rebut the allegation of recent fabrication ought to have instructed the jury in accordance with R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 at 475 (Ont. C.A.):
[T]he fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed.
See also R. v. Divitaris (2004), 2004 9212 (ON CA), 188 C.C.C. (3d) 390 at 400 (Ont. C.A.); R. v. A.(J.) (1996), 1996 1201 (ON CA), 112 C.C.C. (3d) 528 at 536 (Ont. C.A.); and Wait, supra, at 65.
9The Crown submits that in this case a limiting instruction regarding the use of prior consistent statements was not required. It is true that there are circumstances where a limiting instruction may not be necessary. For instance, in R. v. Demetrius (2003), 2003 16618 (ON CA), 179 C.C.C. (3d) 26 (Ont. C.A.), Sharpe J.A. stated at para. 22 that:
[i]t has been held by this court that the usual limiting instruction regarding a prior consistent statement may not be necessary where the defence itself relies on the prior statement (R. v. S.P. (2000), 2000 5706 (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.) at 129), where it was clear to the jury that the prior statement was not offered as proof of the underlying facts (R. v. G.M., [2000] O.J. No. 5007 (QL) (C.A.)), or where the concern about self-corroboration is simply not present (R. v. Clark (1995), 1995 1474 (ON CA), 87 O.A.C. 178).
See also R. v. Vaniderstine, [2003] O.J. No. 4413 (C.A.); and R. v. Wiebe, [2006] O.J. No. 544 (C.A.).
10I disagree, however, that this is a case where the jury would have clearly understood the limited purpose for which the evidence was given. In his closing submissions to the jury, Crown counsel referred to the contents of K.P.’s statement in her note to J.P. and suggested that the statement “made sense”. Specifically, he stated:
Now [the appellant] confirms in‑chief, he’s examined in‑chief, he confirms that [A.P.] had a boyfriend, [K.P.] did not. So does what [K.P.] say when she wrote that note to [J.P.], does that make sense? Well, [A.P.] had intercourse with [the appellant] and she had a boyfriend. [K.P.] didn’t have intercourse and she didn’t [emphasis added].
In this excerpt, Crown counsel in effect invited the jury to rely on K.P.’s statement for the truth of its contents. Nowhere did the trial judge make it clear to the jury that they could not rely on the note K.P. wrote to J.P. or on the prior statements the complainants made to their mother for the truth of their contents, and that they were to consider only the fact that these statements were made in order to assist them in their understanding of the sequence of events from the commission of the alleged offences to the prosecution and in their assessment of the complainants’ truthfulness: see F. (J.E.), supra, at 476. In the circumstances, the jury would not have clearly understood that the complainants’ prior consistent statements were not being offered as proof of the underlying facts.
(2) Did the trial judge improperly admit the evidence of the complainants’ mother regarding her belief that her daughters were telling the truth? If the evidence was admissible, should the jury have been cautioned?
11In examination‑in‑chief the mother testified that one morning after getting ready for work, she came downstairs and found the girls at the kitchen table. K.P. told her that their step‑father had been sexually abusing her and A.P. When asked what she did as a result of the conversation with her daughters, the mother testified:
Well, it came as a total shock obviously to be told that. But in the same way, it was almost like everything seemed to make sense. It wasn’t disbelief that I felt. But, like, I believed them 100 % in what they were telling me.
12The mother’s comment that she believed the girls was inadvertently elicited. Her comment offended the rule which prohibits a party from presenting evidence whose only purpose is to bolster the credibility of a witness. It would, in any event, have been obvious to the jury that the mother believed the girls from the fact that she took them to the police and then to a motel. The Crown, however, pursued the mother’s comment that “everything seemed to make sense” and asked her to explain why the allegations of sexual abuse “made sense”. She replied:
Well, because for so long, as the girls got older, the restrictions and everything that he put on them seemed to get worse as they got older, instead of them being able to do more things. I mean, by this time they were 19 and yet, you know, they weren’t allowed to go out with their friends. He had to almost take them everywhere they went or – you know, every meal time was like an inquisition. He would be questioning them about everything they did in their day‑to‑day, who they spoke to. If any phone calls came to the house, he’d always question them. Just, you know, to me – like, I often wondered, you know, well, what is the point of all of this, because none of it made any sense to me. But when the girls told me what had been going on, then, like, everything seemed to fall into place. It all made sense, all these things.
13The Crown submits that the mother’s evidence was admissible because the ongoing dynamic between the appellant and the complainants was a recurring issue in the trial and significant evidence was tendered by the defence to suggest that the appellant was a loving father figure who wanted what was best for them, made sure they had what they needed, and that the mother had noticed nothing unusual in the home until the complainants spoke to her.
14The mother was entitled to testify as to the restrictions the appellant had placed on the complainants and his conduct towards them. She was not, however, entitled to give her opinion as to the inference to be drawn from that conduct as this was the function of the triers of fact. This evidence ought not to have been elicited in the way it was. The references in the evidence on which the Crown relies all occurred after the mother had expressed her opinion and may fairly be said to be an attempt at damage control. It is difficult to justify the giving of the mother’s opinion in examination‑in‑chief.
15In any event, the trial judge ought to have reminded the jury that it was their role to decide on the credibility of the witnesses and the opinion of any witness on the issue of the complainants’ credibility or the inferences to be drawn from the evidence was not relevant. Instead, the trial judge reviewed the evidence without comment. Combined with the trial judge’s earlier omission, I am of the opinion that the errors warrant a new trial.
(3) Did the trial judge improperly instruct the jury regarding the use of appellant’s after‑the‑fact conduct?
16The appellant submits that the trial judge should not have instructed the jury that in the wake of his family’s disappearance on the night of September 7, 2000 the appellant’s changing of the lock on the door to the matrimonial home and failure to ask his wife why she left could support an inference of guilt. He submits that an inference of guilt from such conduct is so tenuous as to amount to speculation. In the alternative, the appellant submits that the trial judge ought to have given a cautionary instruction.
17The evidence in issue should not be considered in isolation. It was part of a body of circumstantial evidence that was properly before the jury. When the appellant’s family did not return home, the appellant did not contact the police or call their workplace or school (although he did try to call K.P. and A.P. on their cell phones but did not reach them). The family had left a full roast in the kitchen. The appellant did call his brother but told him that his wife was fine and was out shopping. When asked why he had changed the lock on the door to the house, the appellant said it was because the door was jamming. The appellant also said that he came to realize his wife had left him later that night. The next day, when the appellant noticed his wife’s car at a nearby motel, he moved the car to the front of the motel. He then called his wife’s room and said if she wanted the car to come and get it. He did not ask her for an explanation of her conduct or whether she and the children were O.K.
18Taken together with the other evidence outlined above, the evidence in issue was properly admissible and was capable of giving rise to an inference that the appellant was acting in a manner which, based on human experience and logic, was consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. The trial judge repeated the Crown’s position that, in acting as he did, the appellant knew that “the secret was out. He hoped that it had not gone any farther than the immediate family and he wanted to get control of the family and stop them from going to the police.” The position of the defence, which the trial judge also put to the jury after stating the Crown’s position, was that the complainants wanted to get the appellant out of the house so they could stay there themselves and had colluded and fabricated their allegations.
19In the circumstances, I am not persuaded that the trial judge’s charge respecting this evidence constituted an error of law. The trial judge put both the position of the Crown and the position of the defence as to the motive for the appellant’s acts to the jury. The jury also had before them the appellant’s explanation for changing the locks. The trial judge did not tell the jury that they could draw an inference that the appellant was guilty based on his after-the-fact conduct alone. The charge was adequate and not unfair to the appellant in this regard.
(4) Were the verdicts inconsistent?
20The appellant submits that his acquittal on count #3 (sexual assault on K.P.) is inconsistent with his conviction on count #4 (sexual exploitation of K.P.). The time frame for count #3 was December 15, 1996 to August 31, 2000. The time frame for count #4 was December 15, 1996 to December 3, 1998. Thus, the time frame on the count for which the appellant was convicted is shorter than the one on which he was acquitted. Nonetheless, the appellant says the verdicts cannot be reconciled on a rational basis, and the conviction on count #3 is unreasonable.
21There are two predominant differences between sexual exploitation and sexual assault. First, absence of consent is an element of sexual assault but not sexual exploitation. Second, sexual exploitation requires the accused to be in a position of trust or authority towards the complainant or the complainant to be dependent upon him or her whereas sexual assault does not. The essential elements and differences between these offences were made clear to the jury. The mere fact that an accused is found guilty of either but not both sexual assault and sexual exploitation does not mean that the verdicts are inconsistent. See e.g. R. v. Nelson (1989), 1989 7124 (ON SC), 51 C.C.C. (3d) 150 (Ont. H.C.J.); R. v. P.S., [1993] O.J. No. 704 at paras. 26-30 (Gen. Div.), aff’d [1994] O.J. No. 3775 (C.A.).
22There was evidence that K.P. fought off the appellant’s attempts to have intercourse with her but that she ended up having oral sex with him. The jury came back with a question about the elements of sexual exploitation. While consent was not a live issue at trial, the acquittal could mean that the jury nevertheless had a doubt with respect to the issue of consent. As mentioned previously, consent is not an element of sexual exploitation. As the Supreme Court recently stated in R. v. Pittiman, 2006 SCC 9, [2006] S.C.J. No. 9 at para. 8, the jury’s task is to determine whether the Crown has proven each and every element of the offence beyond a reasonable doubt. Where, as here, a single accused is charged with multiple offences, different verdicts may be reconcilable on the basis that the offences are qualitatively different. That is the situation here. Accordingly, I would not give effect to this ground of appeal.
23For the reasons given above, I would allow the appeal, set aside the verdicts of guilty and direct a new trial on those counts. Having regard to the fact that the appellant has already served his sentence, however, I leave it to the discretion of the Crown to determine whether it is in the interests of justice and the public good to proceed.
RELEASED: June 21, 2006 (“KMW”)
“Karen M. Weiler J.A.”
“I agree S. T. Goudge J.A.”
“I agree Paul Rouleau J.A.”