WARNING
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Winkler C.J.O., Laskin and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
P.J.B.
Appellant
Jill D. Makepeace, for the appellant
Gavin MacDonald, for the respondent
Heard: April 3, 2012
On appeal from the conviction entered by Justice Robert A. Riopelle of the Superior Court of Justice, sitting with a jury, on May 14, 2010, and from the sentence imposed on August 23, 2010.
1A jury was asked to decide whether the way in which a stepfather kissed his teenaged stepdaughter was a crime. The jury decided that, sometimes, the kissing was a sexual assault, but at other times it was not.
2P.J.B. (the appellant) says that the jury’s verdict was flawed because the trial judge failed to instruct the jury properly on the central issues in the case, especially those raised on the appellant’s behalf at trial.
3These reasons record my agreement with the appellant and explain why I would order a new trial.
THE BACKGROUND FACTS
4A brief overview of the circumstances underlying the complainant’s allegations and a description of the manner in which the case proceeded at trial provides a sufficient background in which to assess the appellant’s claims of error.
The Setting and Early Relationship
5The appellant met the complainant’s mother on an online dating service in February of 2004. In March, the parties met in person. About two months later the appellant moved into the house where the complainant, her mother, and the complainant’s younger sister lived.
6The complainant and her younger sister divided their time equally between their biological parents under a joint custody arrangement.
7In the beginning, the appellant’s relationship with both sisters was good. But as the appellant began to exercise greater influence over the children, including making decisions about their behaviour and disciplining them, the relationship began to deteriorate.
8A reversal in the fragile relationship between the appellant and the complainant began when the appellant substituted positive attention for the negative treatment he had accorded the complainant earlier. In the result, the appellant and the complainant became very close.
9The complainant began to interpose herself between her mother and the appellant, sitting between the couple on the couch and doing things for the appellant normally done by her mother. The appellant and the complainant’s mother told the children that they planned to marry on June 28, 2008.
The Kissing Incidents
10In late April or early May 2008, the complainant went on a three-day school trip. When she returned, she told her mother and the appellant that she had kissed a boy on the trip. At first, everybody was happy. Very shortly, however, the appellant became concerned about the relationship between the complainant and the boy. He asked her to end the relationship and remove him from her Facebook friend list.
11The appellant began to complain about the complainant’s kisses1 soon after she returned from her school trip. The kisses were “harder” than they had been previously. The appellant began to stick his tongue in her mouth when they kissed, but he did not move it around. The complainant told the appellant that the “tongue in mouth” kissing “grossed” her out and made her feel “crazy uncomfortable”.
12The complainant testified that the appellant told her that he knew she didn’t like the “tongue in mouth” kisses. He explained that his purpose was to let the complainant know when she was kissing him “wrong”.
13The appellant gave evidence that the “tongue in mouth” kissing “didn’t happen at all”.
The Apology
14Shortly after the school trip, the complainant’s mother confronted the appellant with what she regarded as excessive text messaging between the appellant and the complainant. Some messages were sent when the complainant was at school, others while the appellant was supposed to be sleeping. The appellant denied any impropriety in the messages.
15Shortly after the confrontation, the appellant wrote a letter of apology to each of his stepdaughters. He explained that he wrote the letters because during the previous eight to ten months he had been “short” with them. He had not paid as much attention to them as he had previously. The precise terms of the letters were never authoritatively established because the letters were never found.
The Disclosure
16At about 6:45 a.m. on May 21, 2008, the complainant’s mother saw the appellant and complainant lying on a living room loveseat together. Both were fully clothed. The complainant was on top of the appellant who had his arms around her.
17The complainant told her mother that it was not the first time that she and the appellant had been on the couch together. Both denied any impropriety.
18The following day, the complainant’s mother checked the telephone bill and found more than 600 text messages on the complainant’s telephone, including 60 messages the day she left on her school trip and another 50 the day she returned. She confronted the appellant about the messages, as she had asked him not to text the complainant with such frequency.
19During the following weekend, the complainant’s mother and the appellant continued to speak about the relationship between the appellant and complainant. He told her that he was afraid that the complainant was trying to break them up. He wanted to cancel the complainant’s impending overseas school trip. The complainant’s mother concluded that the appellant was encouraging and participating in the concerning behaviour she had noticed in his relationship with the complainant. Shortly thereafter, the police and Children’s Aid Society (CAS) became involved and the appellant was advised to leave the home.
20The complainant acknowledged that she was very upset about the appellant’s threat to cancel her overseas trip. She did not disclose her allegations to her mother and police until she learned of the appellant’s threat, but denied the threat was the reason for her complaint.
The Indictment
21The indictment on which the appellant was arraigned contained six counts: three alleging sexual assault and three charging sexual exploitation. At the end of the evidence and prior to closing addresses, Crown counsel at trial (who was not counsel on appeal) stayed the sexual exploitation counts because they were duplicative of the counts of sexual assault.
22The jury deliberations related only to the three nearly identically worded counts of sexual assault. Two counts (count 1 and 3) alleged the same period of time and count 4 alleged a shorter but overlapping period. All counts alleged the same place. Each count was unparticularized containing no allegations about the sexual conduct that constituted its subject matter. Counsel for the appellant at trial (who was also not counsel on appeal) did not apply for particulars further describing the means by which each offence was alleged to have been committed.
The Trial Proceedings
23The trial proceedings were brief. The fifth and final day of trial included the closing addresses of counsel, the judge’s charge, the jury’s deliberations and the return of the jury’s verdict.
24After the judge had concluded his charge, counsel reminded him of their agreement of the previous day about the conduct alleged to form the subject matter of each count. Count 1 referred to the “dramatic kissing”. Count 3 involved the “tongue in mouth” kissing incident. Count 4 referred to the “belt” incident. The appellant was found guilty only of the “tongue in mouth” kissing count.
THE GROUNDS OF APPEAL
25The grounds of appeal advanced in oral argument recite several deficiencies in the final instructions of the trial judge. I would paraphrase the claims of error as failures of the trial judge to:
i. review and relate the evidence to the issues raised at trial, especially those issues advanced in the appellant’s defence;
ii. fully instruct the jury on the position of the defence;
iii. fairly review the evidence relevant to the jury’s assessment of the credibility of the Crown’s witnesses and the reliability of their evidence; and
iv. provide limiting instructions on evidence of post-offence conduct attributed to the appellant.
26In oral argument, Ms. Makepeace did not pursue the complaint included in her factum that the trial judge unfairly interfered during trial counsel’s cross-examination of witnesses called by the Crown.
27For ease of discussion, I have combined grounds i – iii into a single complaint of inadequate instruction on the central issues raised at trial.
Ground #1: Instructions on the Central Issues
28Consideration of this compendious ground of appeal requires no further references to the evidence adduced at trial. A helpful place to begin an assessment of the adequacy of final instructions is with a reference to the positions advanced by counsel at trial, followed by an overview of the instructions themselves.
The Positions of the Parties at Trial
29Counsel for the Crown at trial contended that each count of sexual assault was proven beyond a reasonable doubt on the evidence of the complainant. Crown counsel advanced the complainant as a credible witness who gave reliable testimony. On the other hand, the appellant, a “master manipulator”, was unworthy of belief.
30Counsel for the appellant at trial submitted that the offences alleged by the complainant never occurred or, where something of the nature alleged by the complainant had occurred, what happened was not a sexual assault. Counsel urged the jury to be especially cautious about relying on any evidence given by the complainant or her mother because they had colluded in their claims against the appellant.
The Charge to the Jury
31At the outset of his final instructions, the trial judge explained to the jury that, contrary to his usual practice, he would not be providing an extensive review of the evidence introduced at trial. He told the jury that the evidence had been brief, lasting only three days, that counsel had reviewed it immediately before his charge, and that jurors would be provided with a list of the witnesses who testified and a verdict sheet the use of which he would later explain.
32The trial judge instructed the jury that each count was a separate allegation that required a separate verdict. He told them that the presumption of innocence applied to each count and the verdicts on the counts need not be the same.
33The trial judge described the position of the appellant at various places in his final instructions. Several paragraphs are representative of these instructions:
i. The defences of course are, as he has testified, that the circumstances are not criminal. They might have been inappropriate but they are not criminal. They were not done in a sexual context. One of them is having to do with the pubic hair. The defence is it did not happen that way at all. It was just the grabbing of the belt, but if it did happen that way, something like that happened it was accidental and that is not criminal.
ii. It is not about whether you like him or you do approve of the way he disciplines or does not discipline. It is about whether or not these events actually occurred the way we are being told that they occurred.
iii. As I said to you earlier, Mr. [B.] testified and he denied of course that there was any sexual context to these activities that we know were going on. That is for you to assess. And he maintained that the third one or the one with the pubic hair was an accident and that is for you to assess. So that was his testimony.
The Arguments on Appeal
34For the appellant, Ms. Makepeace says that the trial judge erred in failing to relate the evidence and the position of the appellant to the essential elements of the offences alleged in each count. She submits that the trial judge focussed on the requirement that force be applied intentionally to constitute an assault, rather than on the issue of whether the conduct said to constitute the sexual assault ever occurred. The impression left by the omission was that the conduct alleged had in fact occurred and the only issue for the jury to resolve was whether the conduct amounted to a sexual assault.
35Ms. Makepeace contends that the trial judge failed to provide the jury with any real guidance on how to assess the credibility of the complainant and the reliability of her evidence. The instructions about the evidentiary value of prior statements were at best inadequate, at worst simply wrong and the trial judge gave the jury no assistance on the factors relevant for their assessment of the complainant’s evidence.
36Further, Ms. Makepeace urges, the trial judge failed to isolate and address each count in the indictment. This failure assumes even greater importance in this case because the appellant’s position was not the same in each count. Nor did the trial judge relate the essential features of the evidence to the issue of whether the conduct alleged occurred in circumstances of a sexual nature.
37For the respondent, Mr. MacDonald reminds us that the standard we are to apply in assessing the adequacy of jury instructions is not a standard of perfection. We are, he says, to take a functional approach and to determine whether, in the circumstances of the case being reviewed, the instructions given left the jury with a sufficient understanding of the issues to be decided to equip them to make their decision. In this case, Mr. MacDonald says, the instructions given fulfilled their function.
38Mr. MacDonald emphasizes the brief, uncomplicated nature of the trial, the issues raised, and the evidence given. Only a handful of witnesses testified. Counsel reviewed the evidence in detail on the same day the jurors were charged, deliberated, and reached their verdict. The trial judge repeatedly emphasized the jurors’ obligation to consider the evidence as a whole. The judge’s determination not to engage in a further recitation of the evidence was influenced by the circumstances of the case and is entitled to substantial deference.
39Mr. MacDonald says that the jurors received adequate instructions about the way in which they were to assess the evidence and make their findings of credibility. The instructions on prior statements were overly favourable to the appellant. The jury was given the W. (D.) instruction and clearly distinguished among the counts by the verdicts they rendered.
The Governing Principles
40Basic principles inform our decision about the adequacy of the trial judge’s instructions in this case.
41Anyone charged with a criminal offence and tried by a jury is entitled to a properly, not perfectly, instructed jury: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 2.
42As described by this court in R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 27, a trial judge’s final instructions must leave the jury with a clear understanding of:
the factual issues to be resolved;
the legal principles governing the factual issues and the evidence adduced at trial;
the positions of the parties; and
the evidence relevant to the positions of the parties on the issues.
43In their final instructions most trial judges include a discrete statement of the positions of the parties, often a repetition of a brief summary prepared by counsel at the judge’s request. What controls, however, is substance not form. In the end, however the message is delivered, jurors must be left with a clear understanding of each counsel’s position. To the extent that the positions may vary among counts in a multiple count indictment, the position on each should be made clear.
44The responsibility of the trial judge to relate the evidence to the issues raised by the defence involves two components. The first is a review of the evidence. The second is a relation of the evidence to the position of the defence. Except in rare cases, where it would be unnecessary to do so, a trial judge must review the substantial parts of the evidence and give the jury the position of the defence so that the jury appreciates the value and effect of that evidence: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498. Typically, trial judges review the evidence in the context of the various issues and indicate what parts of the evidence support the positions of the respective parties on those issues: MacKinnon, at para. 29. Judicial review of the evidence refreshes the jurors’ memory of the evidence given. Judicial relation of the evidence to the issues improves jurors’ understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.
45A trial judge is under no obligation to review all the evidence adduced at trial: MacKinnon, at paras. 29-30; and R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 55-56. Nor is a trial judge required to review the same evidence more than once where the evidence relates to more than one issue, provided the judge makes it clear to the jury that the evidence is relevant for more than one purpose: Jacquard, at paras. 14 and 16.
46Trial judges have considerable latitude in connection with the volume of evidence they review and relate to the various issues the jury will be called upon to decide: R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3; and Daley, at para. 57. It follows that the decisions of trial judges about the volume of evidence they choose to review in final instructions are owed substantial deference by appellate courts. The failure of a trial judge to mention individual items of evidence will not be fatal unless the items omitted constitute the sole evidentiary foundation of a defence: R. v. Demeter (1975), 1975 CanLII 685 (ON CA), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436, affirmed on other grounds 1977 CanLII 25 (SCC), [1978] 1 S.C.R. 538.
47The obligation to review the substantial parts of the evidence and to relate it to the issues raised by the parties is that of the trial judge, not counsel, whether prosecuting or defending. The closing addresses of counsel cannot relieve the trial judge of the obligation to ensure that the jury understands the significance of the evidence to the issues in the case, although the judge can consider the closing addresses of counsel in deciding how to discharge his or her obligations: MacKinnon, at para. 32; Royz, at para. 3; and R. v. Garon, 2009 ONCA 4, 240 C.C.C. (3d) 516, at para. 84.
48Appellate review of the adequacy of jury instructions requires a functional approach in which we test the instructions against their ability to fulfill the purposes for which final instructions are given: Jacquard, at paras. 32 and 41; and MacKinnon, at para. 27.
49Jury charges do not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of jury charges must acknowledge this reality, especially where the complaint is about the extent to which the trial judge has reviewed the evidence in final instructions. Appellate review on this issue includes consideration of the complexity and volume of the evidence adduced at trial, the extent of its review by counsel in their closing addresses, the length of trial proceedings, the issues to be resolved by the jury, the effect of a more complete and balanced review of the evidence, and whether counsel objected to the charge on the ground advanced on appeal. The test is one of fairness: Daley, at para. 57. Provided the evidence is left to the jury in a way that will permit the jurors to fully appreciate the issues raised and the defences advanced, the charge will be adequate: Daley, at para. 57.
50A consequence of the functional approach to jury instructions and their review by appellate courts is the absence of any requirement that the instructions conform with or follow a specific structure. Substance prevails, not form. That said, it is hard to controvert the principle that organized instructions are more likely to inform the understanding of the jury than are unorganized or disorganized directives. Final instructions that display an overall organization,2 as well as an organized approach to individual parts, seem inherently more likely to fulfill the purposes for which instructions are given.
51Among other things, unorganized or disorganized final instructions may result in:
the omission of essential instructions;
the inclusion of irrelevant or superfluous instructions; and
the unnecessary repetition of instructions already given.
In the result, the instructions may become needlessly complex, lengthy and confusing to the jury, and distract jury members from an informed decision on the essential and controverted issues in the case: R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 52.
52In some cases, the unnecessary complexity of a jury charge may divert the jury’s attention from the critical issues in the case to such an extent that a new trial may be required: Rowe, at para. 52; and R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272, at para. 13.
53Multiple count indictments, especially those in which the determination on each count depends on evidence limited to that count and which may involve bases of liability or defences different than those in play on other counts, impose a greater burden on trial judges in their final instructions. Each count is separate. Each requires a separate verdict. Each will often require legal instructions that differ from those that apply to other counts. Common features can be incorporated by judicial shorthand in final instructions, but where different principles are at work, they must be clearly stated to ensure they are appreciated by the jury.
The Principles Applied
54The cumulative effect of several errors and omissions in the final instructions in this case satisfies me that we should give effect to this ground of appeal and order a new trial.
55At bottom, this prosecution involved allegations of sexual offences committed on the daughter of the appellant’s common law partner. The evidence revealed three discrete forms of conduct by the appellant that the Crown alleged amounted to the offences charged:
the “dramatic kissing” incidents
the “tongue in mouth” kissing
the “belt” episode
The trial proceedings were brief, the witnesses few, and the evidence uncomplicated.
56The form of the indictment contributed to the complexity of the proceedings to some extent. The indictment contained six counts, three of sexual assault and three of sexual exploitation. Each referred to the same or overlapping periods of time, same place, and same complainant. Typically,3 no particulars of the specific conduct alleged were included in the count or sought by defence counsel. At the end of the evidence, Crown counsel stayed the three sexual exploitation counts. The jurors received no appreciable assistance on the subject matter of each count until they were recalled after the conclusion of final instructions.
57The charge to the jury failed to accord separate treatment to each count that required the jury’s decision beyond advising them that each count required a separate decision that was to be made wholly and exclusively on the evidence that related to that count and that the verdicts need not be the same on each count. The overall impression left by the charge is that the jurors had to decide whether the appellant’s conduct was merely inappropriate or was criminal.
58What the charge as a whole lacked was a focussed reference to the factual issues to be resolved in connection with each count (as ultimately described), a statement of the positions of the parties in relation to the count, and a review of the significant features of the evidence that bore on the parties’ positions on each count.
59On the count relating to the “tongue in mouth” kiss, the appellant’s position was that the incident never occurred. The trial judge never instructed the jury on this defence, rather implicitly brushed it aside with his focus on the criminal nature of the conduct.
60The final instructions of the trial judge, including his response to the jury’s request for a definition of assault and “the actual written definition of the four elements of sexual assault”, included reference to statutory provisions that had no foundation in the evidence or were legally irrelevant to the jury’s task. The assistance the jury requested was not provided. In combination, the failure of the trial judge to instruct the jury on the position of the defence and the unnecessary complexity in the charge deprived the appellant of a fair adjudication of the merits of his defence and they warrant a new trial.
Ground #2: Failure to Instruct on Evidence of Post-Offence Conduct
61The second ground of appeal alleges error by the trial judge in failing to instruct the jury that evidence of certain conduct attributed to the appellant after the complainant reported her allegations was of no evidentiary value in determining whether his guilt had been proven beyond a reasonable doubt.
62An assessment of this claim of error requires a brief reference to the evidence at issue and the use Crown counsel at trial sought to make of it in his closing address to the jury.
The Background
63On their first attendance after a telephone call from the complainant’s mother, the police concluded that the marital relationship had broken down and that the couple should separate. The parties agreed that the appellant should leave the matrimonial home “for a few days” and developed a plan to ensure that the children did not come into contact with the appellant.
64The following day the complainant’s mother and a CAS worker returned to the home to retrieve some keys. The appellant’s truck was there. The CAS worker told the appellant to leave. The appellant explained that the police had told him to stay away from the house for two, or “a couple of days”. He returned to the house two days later to retrieve some of his belongings.
65The complainant’s mother was hospitalized shortly after police and CAS began their investigation. She claimed that the appellant wrote her a note of apology and later a suicide note. Neither contained any admission of wrongdoing. She testified that the note of apology was delivered to her in the hospital, and it was marked as an exhibit at trial. As discussed earlier in the “Background Facts” section, the appellant had also previously written apology letters to each of his stepdaughters. The complainant’s mother testified that when she returned home from the hospital these letters were missing.
The Closing Address of Crown Counsel at Trial
66In his closing address to the jury, counsel for the Crown at trial referred to the evidence about the appellant’s return to the matrimonial home and the missing letters of apology. He suggested that the evidence supported the inference that the appellant manipulated the police to permit his premature return to the home to recover the letters, his purpose being to remove them as pieces of incriminating evidence.
The Jury Instructions
67In his final instructions, the trial judge referred to the substance of the evidence to which the trial Crown had referred, but did not instruct the jury on its relevance to any issues they were to determine or impose any limitations upon its use.
The Arguments on Appeal
68For the appellant, Ms. Makepeace says that evidence of post-offence conduct is circumstantial evidence that can be of assistance in completing proof of guilt provided the inferences it is said to support are reasonable. In this case, however, the inferences advanced by the trial Crown were unreasonable and speculative.
69Ms. Makepeace contends that there was nothing sinister about the timing or frequency of the appellant’s return to the matrimonial home in light of the advice he received from the police, nor any evidence to link him to the disappearance of the letters of apology to his stepdaughters. The trial Crown’s reference to this evidence in his closing address required an instruction from the trial judge that the evidence had no probative value on any issue at trial. The failure of the trial judge to provide such an instruction constituted misdirection.
70For the respondent, Mr. MacDonald reminds us that evidence of post-offence conduct is not some unique or special kind of evidence, but simply circumstantial evidence of things done or said by an accused after an offence has been committed. The evidence, which is admissible where it is relevant and capable of supporting reasonable inferences such as showing the culpable character of an accused’s conduct, does not attract any special warning or instruction about evidentiary use.
71Mr. MacDonald says that the cumulative effect of the evidence relied upon here can sustain an inference that the appellant removed the letters of apology to evade detection. Thus, the trial judge would have been wrong to provide a “no probative value” instruction about this evidence. But even if a “no probative value” instruction were required, its omission caused the appellant no prejudice because of the peripheral nature of the evidence and the lack of objection at trial.
The Governing Principles
72The parties occupy common ground about the basic principles that control our decision on this ground of appeal. They part company about the result the application of these principles should yield in this case.
73Three basic principles about evidence of post-offence conduct are of significance here.
74First, evidence of post-offence conduct is not some unique or special kind of evidence that is subject to specific rules because of its peculiar nature. It is circumstantial evidence, the relevance and admissibility of which depends on the application of basic evidentiary principles: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 22, 38, 105, 132, and 137.
75Second, evidence of post-offence conduct is not subject to any special warning about evidentiary use: White, at paras. 21, 105, and 137.
76Where the circumstances require a specific instruction about limited evidentiary use, a failure to give such an instruction, an error of law, may be subject to the application of the proviso in s. 686(1)(b)(iii): White, at paras. 95-98; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25; and R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 35-36.
The Principles Applied
77I would not give effect to this ground of appeal. I am satisfied that evidence of what the appellant did and said after the complainant’s disclosures to the CAS and police was properly admitted at trial and required no express instruction limiting or prohibiting its use by the jury during their deliberations. Even if some instruction should have been provided to the jury about the use of this evidence, I am satisfied that its omission did not occasion the appellant any substantial wrong or miscarriage of justice in the circumstances of this case, and the proviso of section s. 686(1)(b)(iii) would apply.
78The evidence included testimony that the appellant wrote apology letters to the complainant and her sister and asked the complainant’s mother to hide the letters so that visiting family members would not see them. When the complainant’s mother returned home from the hospital, the letters were gone. The appellant had returned to the house in the interim. Considered in its entirety, this evidence could support an inference that it was the appellant who removed the letters to avoid their inculpatory implications.
79Second, White instructs that the mere introduction of circumstantial evidence of post-offence conduct requires no special warning to the jury about its use: White, at paras. 21, 105, and 137.
80Third, trial counsel for the appellant did not object to Crown counsel’s reference to this evidence in his closing address or seek any “no probative value” or limiting instruction about the evidence in the charge to the jury.
81Fourth, evidence of the post-offence conduct of the appellant was not a significant aspect of the Crown’s case against the appellant. The principal issues at trial were whether the conduct alleged by the complainant took place, and whether some incidents were of a sexual nature. On these issues, the Crown’s case depended on the jury’s acceptance of the evidence of the complainant.
82Finally, the evidence of post-offence conduct related to the conduct that formed the subject matter of all counts on which the jury was asked to render a verdict. The appellant’s acquittal on two of the three counts tells heavily against any claim that reception of the evidence or the absence of limiting instructions caused the appellant any prejudice.
CONCLUSION
83For these reasons, I would allow the appeal, quash the conviction, and order a new trial on count 3 of the indictment. In these circumstances, it is not necessary to consider the appeal from sentence.
“David Watt J.A.”
“I agree W. Winkler C.J.O.”
“I agree John Laskin J.A.”
Released: October 30, 2012 “JL”
Footnotes
- The manner in which the appellant and the complainant kissed, described at trial as “dramatic kissing”, was the subject of the first count of sexual assault contained in the indictment. The appellant was acquitted of this count at trial.
- For example by division into sections such as: Introduction and Basic Concepts, The Issues, The Positions of the Parties, and Available Verdicts and Concluding Instructions.
- As a general rule, indictments and informations containing counts of sexual assault do not describe the nature of the conduct that forms the subject matter of the charge.
