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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, MacFarland and Epstein JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
U.C.
Appellant
Peter Copeland, for the appellant
Holly Loubert, for the respondent
Heard: March 3, 2009
On appeal from conviction for two counts of sexual interference by Justice N. Dyson, of the Superior Court of Justice, sitting with a jury, dated November 17, 2005.
Moldaver J.A.:
1The appellant was tried before Dyson J. and a jury on one count of sexual assault and one count of sexual interference in relation to S and one count of sexual assault and one count of sexual interference in relation to V. He was convicted on all four counts. Conditional stays were entered on the sexual assault convictions and he received a global sentence of four years imprisonment on the sexual interference counts.
2The appellant appeals from conviction only and raises the following two grounds of appeal:
(1) Did the trial judge err in permitting the jury to use the testimony of each complainant as similar fact evidence; and
(2) If the trial judge did not err in permitting the jury to use the testimony of each complainant as similar fact evidence, did he err in failing to warn the jury about the ways in which that evidence could not be used.
3For reasons that follow, I would not give effect to either ground of appeal and would dismiss the appeal.
Background Facts
4This was a straightforward, uncomplicated case. The two complainants, S and V, claimed that the appellant, who was their mother’s live-in boyfriend, sexually assaulted and molested them over a period of time during their pre-teen and early teenage years. The incidents of abuse occurred in the three residences that the family occupied from 1996 to 1999. As a general rule, the sexual misconduct occurred in the bedroom where the particular complainant happened to be sleeping on any given night. On some occasions, the incidents with S would occur when she was by herself; on others, her brother and sister V might be sleeping in the same room. The same held true for the incidents involving V.
5The appellant’s advances towards S commenced with touching and fondling and proceeded to full intercourse. In V’s case, the abuse was restricted to fondling and touching.
6Of particular significance, both S and V claimed that it was the appellant’s habit to crawl on his hands and knees into the room where one or the other or both were sleeping as a prelude to his sexual advances.
7At the time of trial in 2005, S was 21 years-old. She testified that the incidents of abuse against her occurred when she was between the ages of 12 and 15. V was 18 years-old at the time of trial. The incidents of abuse towards her occurred when she was between the ages of 10 and 13.
8S and V testified that while the abuse was ongoing, neither knew that the other was being abused. It was not until 2002, when S and V were engaged in a heated discussion about why S was not living with their mother, that S told V about the appellant’s sexual misconduct. When V heard this, she started to cry and told S that the appellant had also touched her inappropriately. On hearing this, S telephoned their natural father and he came over immediately. Later that night, V and S reported the abuse to the police. According to V, she and S “barely talk[ed] about [the issue] that brought them to court”.
9S testified that she did not tell anyone about the abuse at the time it was occurring because she was frightened and ashamed and felt that no one would listen to her. Over the objection of defence counsel, S was permitted to testify that she was afraid to disclose the sexual abuse as it was occurring because, among other things, the appellant was physically abusive towards her mother and she did not want her mother to be hurt, nor did she want to be hurt. For her part, V also kept the abuse a secret, except for telling some friends at school whom she trusted. V felt that she could not go to the police because she was frightened and embarrassed. She did not tell her mother because “it would just cause a lot of trouble in my family”.
10The appellant did not testify at trial, nor did the complainants’ mother. Through cross-examination of S and V, the appellant advanced a position that S and V disliked their mother because she was abusive towards them, both physically and emotionally, and in order to get back at her, they hatched a plan to falsely accuse the appellant of sexual abuse.
11In support of his allegation of collusion, the appellant adduced evidence from S about her relationship with her mother, including the fact that her mother was bad tempered and “beat [her] up a lot”. S also agreed that on occasion, she called the police on her mother and apparently the Children’s Aid Society as well. S further acknowledged that as of the date of trial, she had not contacted her mother for a long time. That said, she stated that she still loved her mother: “I don’t hate my mom. I love her. She’s done some things obviously that I don’t agree with, but I still love her”.
12S denied the suggestion that she and V had concocted the allegations against the appellant to “get back” at him and her mother. V denied the suggestion as well, even though she acknowledged the troubled relationship between S and their mother and the fact that their mother would “hit [them] now and then”.
13In further support of his collusion theory, the appellant called two witnesses, M.F. and his daughter Ma.F., each of whom testified that on an unspecified occasion prior to the appellant’s arrest, S came to their home and told them, in some unspecified context, that she hated her mother, that she was going to hurt her “where it would hurt her the most” and that she was going to get V to help her.
14In cross-examination, M.F agreed that he was one of the appellant’s best friends. He and the appellant had known each other since 1983 and they had come to Canada together from El Salvador. Further cross-examination revealed that M.F. had no idea about the timing of S’s alleged communication, despite being certain in his examination-in-chief that it had occurred before the appellant’s arrest. M.F. also had no idea about how the conversation had come about and he acknowledged that prior to testifying in court, he had not told the appellant or the police about it – even after hearing about the allegations against the appellant.
15Ma.F.’s testimony suffered from similar frailties. She too could not explain the circumstances giving rise to S’s alleged communication; nor could she recall when it occurred. Like her father, she loved the appellant, who was her godfather, and she was not concerned about the allegations against him because they were “unbelievable”. While she claimed to have remembered S’s remarks because they were “important”, she acknowledged that she had not told the police or the appellant or anyone else about them until the day she testified “because there is other things … it’s a busy life and everything”. In examination-in-chief, when defence counsel [not Mr. Copeland] asked her whether she had heard S say anything negative about the appellant, she replied that she had not and stated “that’s why I’m here, that’s why I’m sure that anything she’s charging him [with] never occurred.”
16In cross-examination, when challenged by Crown counsel that she really could not comment one way or the other on the allegations considering that she was “never at their home” and “never saw any of this happen”, Ma.F. replied that her knowledge was based on:
… like what I’d seen. Like I said, if you know a person, you know what they are like, you see their actions, the way they act, and you base conclusions on it, right? So basically knowing the knowledge, my knowledge that I know of them and my knowledge that I know of him … you basically base your knowledge, you make your own conclusions out of that, and as well as, you know, that I have been around him and I feel pretty much secure.
17After receiving those answers, Crown counsel questioned Ma.F. about whether she knew that the appellant had struck the complainants’ mother. Over defence counsel’s objection, the trial judge permitted the question to be answered. In his view, Ma.F. had opened the door by claiming that her belief that the appellant had not abused S and V was “based on her knowledge of his reputation and character”. Ma.F. replied that she had “heard” that the appellant had beaten the complainants’ mother but had never seen it. Crown counsel then asked the following question:
Q. Despite the fact that you heard that he has beaten up their mother and not seen it, you choose to believe, even though you’ve never seen any assaults on the girls, that he’s not the kind of person who would do that?
A. I believe –
Before Ma.F. could answer, defence counsel objected on the basis that the Crown was “leading character evidence” that arose “as a result of his own cross-examination” and not anything that had been “led in-chief or through the defence cross-examination”.
18The trial judge then asked the jury to retire. Crown counsel interjected and stated: “that was my last question”. The jury remained and the question went unanswered. Counsel for the appellant indicated that he had no re-examination of Ma.F. The Crown called no witnesses in reply and that completed the evidence.
19At this juncture, before calling on counsel to address the jury, the trial judge heard argument on a similar fact application the Crown had brought at the outset of the trial. It had been agreed that argument on the application would be postponed until the completion of the evidence. In anticipation of final argument, the Crown had provided the trial judge with a comprehensive factum containing the relevant authorities and the Crown’s position on the permissible uses of the proposed similar fact evidence. One section of the factum was devoted to the issue of “collusion” and it set out the governing principles, including the principle from R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.), that if there was an air of reality to the allegation of collusion, the trial judge had to be satisfied, on balance, that the proposed similar fact evidence was not tainted by collusion before permitting the jury to use it as such.
20In its factum, the Crown clearly acknowledged that it bore the onus of establishing the admissibility of the proposed similar fact evidence. Nonetheless, the trial judge called upon defence counsel to argue first.
21In his submissions, defence counsel did not mention the word “collusion”, let alone rely on it as basis for dismissing the Crown’s application. Rather, he referred to this court’s decision in R. v. Thomas (2004), 2004 CanLII 33987 (ON CA), 190 C.C.C. (3d) 31 and argued that the evidence of S could not be used to bolster V’s credibility because S’s allegations, which included allegations of full penetration, were far more serious than the acts described by V and thus, (although not articulated by defence counsel) were insufficiently similar to show that the acts alleged had in fact occurred.
22Without calling upon the Crown, the trial judge found that there were “a number of distinctions [between the case at hand and Thomas]” and he granted the Crown’s application. The first ground of appeal arises from that ruling.
Ground One – Did the trial judge err in permitting the jury to use the testimony of each complainant as similar fact evidence?
23Before this court, counsel for the appellant did not argue that the trial judge erred in failing to give effect to the argument made by defence counsel at trial. Rather, he submitted that on the trial record, there was an air of reality to the appellant’s allegation of collusion and the trial judge was therefore obliged to address the issue and explain why he was satisfied, on balance, that the proposed similar fact evidence was not tainted by collusion.
24I reject that submission for two reasons.
25First, the trial judge was not obliged in the circumstances to address an argument that was not raised by defence counsel. There is no suggestion here that defence counsel was incompetent and by not raising the issue of collusion, he was surely signaling the trial judge that the threshold question was a non-issue. Put differently, I can think of no reason why competent counsel would not have raised the issue of collusion in argument if he had thought it had the slightest chance of success. In short, it is apparent to me that defence counsel was content to let the jury consider the issue of collusion and decide its impact, if any, on the probative value of the similar fact evidence.
26Second, it does not follow from defence counsel’s failure to raise the issue of collusion that the trial judge ignored it. The trial judge had the benefit of the Crown’s factum on the law of collusion and, in any event, trial judges are presumed to know the law. Hence, I start from the premise that the trial judge did consider the issue of collusion and concluded that it either lacked an air of reality or that he was satisfied, on balance, that the testimony of the complainants was not tainted by collusion. The appellant has presented nothing to the contrary.
27Looked at from a slightly difference perspective, in view of defence counsel’s failure to raise the issue and given that the trial judge’s decision was discretionary, to succeed on this ground, the appellant would have to show that on this record, no trial judge acting reasonably could have been satisfied on balance that the complainants’ evidence was not tainted by collusion. In my view, the evidence falls far short of meeting that test. Accordingly, I would not give effect to the first ground of appeal.
Ground Two – Did the trial judge err in failing to warn the jury about the ways in which the similar fact evidence could not be used?
28As is apparent, this ground of appeal concerns the charge to the jury. Counsel on appeal takes no issue with what the trial judge told the jury. His complaint turns on what the jury was not told.
29In his charge to the jury, the trial judge succinctly summarized the essence of the appellant’s position as follows:
[Defence counsel’s] position is that, in effect, you can and should find that this did not happen. He suggests that there was collusion between the two sisters and suggests that it is all made up. He asks you not to believe the complainants because of various inconsistencies in their testimony, and he points out some of the implausibilities, that he would ask you to deny acceptance of their testimony. He has outlined the failure to reveal the acts of the accused for a considerable length of time before they went to the police. You will have to consider that.
30Earlier in the charge, the trial judge instructed the jury on the use they could make of the similar fact evidence by each complainant. His instructions in this regard are reproduced below:
Now, in this case there has been an indication that there are some similar acts and I will deal with the approach that you should take with respect to similar acts. You will recall that both complainants indicated that the accused person was on his hands and knees while coming into the room and there may be other events or acts or evidence that you consider to be similar. The Crown has asked you to use such acts as confirmatory of other acts.
Now, the defendant is charged with a number of offences here and I would say to you that each charge requires its own proof. The ones that overlap, you must consider each charge and it requires its own proof.
The real issue for you to decide in this case is whether the offences alleged by each complainant ever actually took place. Be careful not to jump to the conclusion that if one complainant is telling the truth, the other must be telling the truth as well, nor should you jump to the conclusion that because the complainants allege similar conduct they all must have occurred if any one of them is proved. It is up to the Crown counsel to prove each charge independently of the other. However, you may but do not have to find that there is a pattern of similar behaviour that confirms each complainant’s testimony that the offence took place. It is for you to say in considering the evidence and bearing in mind the relationship between the defendant and the complainants, as well as the circumstances of all the situations.
31Following these instructions, the trial judge moved immediately to the subject of collusion. He did so, quite properly, because he recognized that the appellant was relying on collusion to blunt the force of the apparent similarities in the complainants’ evidence and to show that their testimony was contrived and not worthy of belief. No issue is taken with the trial judge’s instruction on the meaning of collusion, nor its impact on the worth of the complainants’ testimony, depending on the jury’s assessment of it.
32Viewing the matter realistically, I believe that the foregoing instructions provided the jurors with the tools they needed to arrive at a fair and just verdict. Put simply, on this record, if the jury did not believe or have a reasonable doubt that the evidence of the complainants was a product of collusion, the appellant’s fate was all but sealed.
33Presumably, trial counsel felt the same way. Otherwise, given that his competence is not challenged, surely he would have asked the trial judge to provide the limiting instructions that counsel on appeal insists, for the first time, should have been given. The missing instructions, now claimed to have been mandatory, are set out below:
(1) The trial judge should have warned the jury against using the similar fact evidence to show that the appellant had a general disposition to sexually abuse young females and, on that basis, infer that he was likely to have committed the offences charged;
(2) The jury should have been told that they could not use the evidence of the appellant’s violent conduct towards the complainants’ mother to show that he was prone to behave violently and, on that basis, infer that he was likely to have committed the offences as charged; and
(3) The jury should have been told that they could not use the appellant’s violent conduct towards the complainants’ mother to show that he was a bad person and therefore deserving of punishment.
34Beginning with the last complaint – bad character evidence – it is true that a limiting instruction could have been given. Had the trial judge given it, however, he would, as a matter of fairness, have had to combine it with an instruction on the way in which the assaultive conduct could be used in order to explain why the complainants, out of fear, had not made a timely disclosure. In his charge, the trial judge made no mention of this, although he did leave the question of delayed disclosure, relied on by the defence, for the jury’s consideration. No doubt, competent defence counsel was content to let sleeping dogs lie.
35In any event, I find it inconceivable that this or any other jury would convict the appellant on the serious charges he was facing, not because he was guilty of them, but because he deserved to be punished for assaulting the complainants’ mother. Quite frankly, with respect to those who see the matter differently, I find the proposition startling and part company with those who have so little faith in juries.
36As for the second complaint – impermissible reasoning from the appellant’s assaultive disposition – I accept that the instruction sought by counsel on appeal could have been given. But like the first complaint, it too could be viewed as a “double-edged” sword, seeing as it would have highlighted one of the major weakness in Ma.F.’s evidence – her belief that the complainants were not being truthful because of her perception that the appellant was not the type of person who would do what the complainants accused him of doing. Given that Ma.F.’s evidence went to the crucial issue of collusion, it makes perfect sense that defence counsel would not have wanted the weaknesses in her testimony exposed to the jury any more than necessary. In his charge, the trial judge had made no mention of Ma.F. Presumably, defence counsel was content to leave matters that way.
37In any event, once again, I consider it fanciful that this or any other jury would convict the appellant not because his guilt had been proved beyond a reasonable doubt, but because he showed a disposition for violence towards his adult girlfriend, the complainants’ mother.
38Turning to the first complaint – impermissible general propensity reasoning – I am firmly of the view that the type of instruction, now claimed by the appellant to have been essential, was unnecessary in the circumstances of this case, and it could only have confused the jury or, worse yet for the appellant, caused him more harm than good.
39Jury instructions are meant to educate, not confuse. Instructions by number can be useful to a point but they are not a substitute for independent thought and they should not be treated as the holy grail. Unnecessary instruction does not become necessary simply because it appears in a model instruction.
40In the case at hand, the similar fact evidence gained its probity from the improbability of two people coincidentally giving the same evidence. Here, as the Crown points out paragraph 19 of its factum, absent collusion or some other form of tainting, its probative value was extremely high:
The similarities in the testimony of these two witnesses [the complainants] were so numerous and so distinctive that to suggest that they were the result of coincidence would defy common sense. In fact, some of the sisters’ evidence – particularly the fact that the appellant entered their bedrooms crawling on the floor on his hands and knees – even rises above the requisite level of connectedness. This similar fact evidence is in fact so peculiar and unusually distinctive that it almost rises to the level of the ‘striking similarity’ required to use similar fact evidence to prove identity.
41In the circumstances of this case, if collusion is eliminated, the impermissible “general disposition” inference – that the appellant is the kind of person who is prone to sexually abusing young females and for that reason, is more likely to have committed the offences with which he is charged – is swallowed up by the permissible “specific disposition” inference – that the appellant had a specific disposition to sexually abuse his companion’s two young daughters and the jury could take this into account in deciding whether he committed the alleged offences.
42Had the trial judge given the “general disposition” instruction that the appellant now claims he should have, surely the Crown would have been entitled to a “specific disposition” instruction. Apart from confusing the jury, such an instruction would have inured to the benefit of the Crown, not the appellant.
43Thus, it is little wonder that competent defence counsel did not object to the trial judge’s instructions. In the cold light of reality, it would have been foolhardy for him to have done so.
44For these reasons, I would not give effect to the second ground of appeal.
Conclusion
45The issues raised on this appeal were not raised at trial, although they could have been. No suggestion is made that trial counsel was incompetent; indeed, counsel on appeal submitted the opposite.
46That scenario – counsel on appeal raising issues that competent trial counsel could have raised, but did not – is not an uncommon one in this court. And, as in this case, it will generally result in a failed appeal. Indeed, it will only succeed in those cases where, despite the failure to raise the issue now said to be crucial, counsel on appeal can demonstrate a reversible error of law or a miscarriage of justice. As our jurisprudence indicates, that will be no easy task.
47In the result, I would dismiss the appeal.
Signed: “M.J. Moldaver J.A.”
“I agree J. MacFarland J.A.”
“I agree G. J. Epstein J.A.”
RELEASED: “MJM” May 5, 2009
