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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
MOLDAVER, SHARPE and BLAIR JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
C.M.
Appellant
Timothy E. Breen for the appellant
Craig Harper for the respondent
Heard: May 20, 2008
On appeal from the conviction entered by Justice J. Hamilton of the Superior Court of Justice, sitting with a jury, dated April 12, 2006, and the sentence imposed on May 31, 2006.
1The appellant was convicted by a jury of sexual interference, incest, sexual assault, sexual exploitation, and assault causing bodily harm. The sexual assault and sexual exploitation counts were stayed pursuant to the Kienapple principle, and the appellant was sentenced on the remaining counts to a total term of 10 years imprisonment. He appeals against conviction and sentence.
2The complainant, the appellant’s daughter, testified that the appellant raped her, more or less on a daily basis, over a three-year period beginning when she was 13 years old. She testified that as a result of the appellant’s actions, she contracted a sexually transmitted disease, she became pregnant, and the appellant arranged for her to have an abortion. She also testified that the appellant also struck her on various occasions, and that she suffered permanent injury to her ear as a result of an assault by the appellant.
3The appellant testified and denied having had any sexual contact with his daughter or assaulting her.
Conviction Appeal
4The appellant raises three grounds of appeal against conviction:
Did the trial judge err by failing to give the jury a limiting instruction on the use of the complainant’s prior consistent statements?
Did the trial judge err by failing to give the jury a limiting instruction on the use of evidence of the appellant’s discreditable conduct?
Did the trial judge err by failing to direct the jury that opinions of witnesses as to the credibility of the complainant and the appellant were irrelevant?
1. Prior consistent statements
5There was considerable evidence led as to prior statements made by the complainant in relation to her allegations of sexual abuse. While the trial Crown made a brief reference to the fact that some of these statements had been made during the complainant’s examination-in-chief, this was done merely to establish narrative and the Crown led no evidence as to the content of those statements. It was, rather, defence counsel who elicited the details of the complainant’s prior statements. This appears to have been done for two tactical purposes. First, the defence attempted to demonstrate inconsistencies in the complainant’s account of the sexual abuse she had suffered at the appellant’s hands. Second, the defence attempted to use certain of the complainant’s statements to advance its theory that the complainant made up her allegations of abuse during a dispute with the appellant over her failure to comply with his rules of the house.
6While the trial judge could well have given the usual limiting instruction in relation to the limited evidential value of prior consistent statements—indeed, it might have been preferable for him to have done so—we do not agree that in the circumstances of this case, the trial judge’s failure to give that instruction amounted to an error that undermined the fairness of this trial.
7Details of the prior consistent statements were led by the defence for the tactical reasons we have mentioned. The Crown made only passing reference to the fact that certain statements had been made and placed no meaningful reliance on them when addressing the jury. Defence counsel, who had elicited the evidence, did not ask for a limiting instruction and did not object to the trial judge’s omission of any such instruction from his charge. There is no allegation of ineffective assistance of counsel. The trial judge gave a very balanced charge to the jury, carefully outlining the evidence led by both the Crown and the appellant, and fully and fairly explaining the positions taken by the prosecution and by the defence. His instructions included a fair and accurate explanation of the use the defence sought to make of the complainant’s prior statements.
8Given the use the defence made of the complainant’s prior consistent statements, the Crown’s lack of reliance on those statements, the trial judge’s instruction to the jury as to the inferences the appellant asked the jury to draw from those statements, and the absence of any objection from defence counsel at trial, we would not give effect to this ground of appeal.
2. Discreditable conduct
9The jury received considerable evidence that discredited the appellant’s character, including: his criminal record, his sexual promiscuity and infidelity, his fathering of 16 children with 7 different women, his transmission of venereal disease to his common-law partner, his parental irresponsibility, his spousal abuse, and his illicit drug use.
10The appellant does not submit that any of this evidence was inadmissible and, indeed, some of it was led by the appellant himself. Evidence of his transmission of venereal disease was clearly relevant—it was part of the Crown’s case that the appellant had committed incest, as the appellant’s common-law partner was infected at more or less the same time as the complainant.
11The trial judge gave an appropriate limiting instruction with respect to the appellant’s criminal record and he also cautioned the jury not to draw any inference from the appellant’s inability to name all 16 of his children.
12It would have been preferable had the trial judge cautioned the jury not to use evidence of the appellant’s lifestyle and discreditable conduct to reason that he was the sort of person who had a propensity to commit these offences. That said, we are not persuaded that this deficiency in the charge constitutes reversible error in the circumstances of this case. We arrive at that conclusion for the following reasons.
13There was no objection from defence counsel, although he himself cautioned the jury about making improper use of this evidence in his closing address:
You may not like [C.M.] as a person but he’s not charged with having children with many women. He’s not charged with smoking marijuana. He is charged with sexually assaulting his daughter and beating her. That’s what he is charged with because anything in his lifestyle led to a logical conclusion that he would have been sexually molesting his daughter [sic]. I’d say no.
14Yet defence counsel, for whatever reason, took no exception to the trial judge’s omission of any similar instruction in his charge. As we have already noted, no allegation of ineffective assistance of counsel has been made on this appeal. Trial counsel may have had a reason for not seeking a limiting instruction. It is possible that the defence did not wish to have the trial judge highlight or remind the jury of every element of the bad character evidence. It is possible that the defence decided that the evidence that the appellant had experience with and access to a multitude of adult sexual partners suggested that he would have been less likely to have molested his own daughter. Whatever the reason, the defence at the time of the trial decided not to object to this aspect of the trial judge’s instructions to the jury. That is a significant factor that must weigh in our assessment of this ground of appeal.
15In light of the failure to object, the existence of plausible tactical reasons for not objecting, and in view of the fact that, read as a whole, the charge was entirely fair and balanced, we are not persuaded that this aspect of the jury charge constituted an error that affected the fairness of this trial. Accordingly, we would not give effect to this ground of appeal.
3. Opinion as to credibility
16The complainant’s mother made a passing comment as to her belief in the complainant’s truthfulness in response to a question posed by the trial judge. No objection was made to the trial judge’s failure to warn the jury about this evidence. We are far from persuaded that this passing comment could have occasioned any harm to the appellant. Moreover, in all likelihood, an instruction along the lines now sought would only have served to highlight a fleeting reference to the witness’s opinion and have done the appellant’s position more harm than good.
17The appellant’s partner made a passing reference to her disbelief in the appellant’s explanation for his possession of a photograph of a female co-worker. Again, no objection was taken to the trial judge’s treatment of this evidence. This comment had no direct bearing on the appellant’s denial of the complainant’s evidence. The trial judge made it clear that the credibility of witnesses it was a matter exclusively for the jury to determine. We are not persuaded that there is any realistic prospect that the jury could have improperly used the witness’s disbelief in what the appellant said in relation to a collateral matter as a basis for rejecting his evidence as to the complainant’s allegations.
Sentence Appeal
18We see no merit in the sentence appeal. These were extremely serious offences involving the appalling sexual exploitation of the appellant’s own daughter over a period of three years. The consequences for the complainant were grave. She had to deal with sexually transmitted disease, pregnancy and abortion, and the humiliation of being sexually abused by her own father. She suffered a significant physical injury. She continues to struggle with the psychological trauma inflicted upon her by the appellant’s conduct. While the sentence was certainly lengthy, it does not fall outside the permissible range of sentence for this conduct.
Conclusion
19Accordingly, the appeal from conviction is dismissed, leave to appeal sentence is granted, but the appeal from sentence is dismissed.
“M.J. Moldaver J.A.”
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”
RELEASED: May 30, 2008
