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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Doherty, LaForme JJ.A. and Glithero J. (ad hoc)
BETWEEN
Her Majesty the Queen
Appellant (Respondent)
and
Andrew Chamot
Respondent (Appellant)
Riun Shandler, for the appellant (respondent)
David E. Harris, for the respondent (appellant)
Heard: November 14, 2012
On appeal from the convictions entered by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a jury, dated March 4, 2011, and from the order quashing a charge of sexual assault, dated April 5, 2011.
I
overview
1Shortly after Ms. A.B. came to Canada with her three children to live with Andrew Chamot (“Chamot”), he allegedly began to physically abuse her two sons, B. and G., and to physically and sexually abuse her daughter, B.B. Chamot was tried by a jury in 2011 on 16 charges. The jury returned guilty verdicts on eight counts, including a charge of sexual assault spanning the period between March 2001 and August 2007 (count 3). The jury acquitted on the remaining eight counts.
2At sentencing, the trial judge quashed the sexual assault charge (count 3) holding that the count effectively charged two different offences because it encompassed a timeframe when B.B. was both under and over 14 years of age (the age of consent at the relevant time). The trial judge gave Chamot credit for 34 months of presentence custody and sentenced him to an additional 20 months on the remaining counts on which he was convicted.
3The Crown appeals pursuant to s. 676(1)(b) of the Criminal Code from the order quashing the sexual assault charge. Crown counsel seeks an order restoring the conviction and remitting the matter to the trial judge for sentencing.
4Chamot resists the Crown appeal. He also appeals from the convictions. Chamot seeks a new trial on all counts on which the jury convicted, including the sexual assault charge on count 3.
5I would allow the Crown appeal. The trial judge had no jurisdiction to quash the sexual assault charge after the jury had returned its verdict. Even if there was jurisdiction to quash the count, that remedy was not appropriate in this case. Although count 3 did encompass a time period when B.B. was both under and over 14 years of age, the trial judge instructed the jury that it could only convict on count 3 if the Crown had proven beyond a reasonable doubt that B.B. had not consented to the sexual activity. In light of this instruction, the manner in which the allegation in count 3 was framed could not have prejudiced Chamot’s defence to the charge.
6I would also allow Chamot’s appeal. The jury necessarily heard a great deal of evidence that inevitably cast Chamot in a very bad light. The trial judge did not caution the jury against the potential misuse of that evidence of bad character. A limiting instruction was essential in this case. The failure to give that instruction necessitates a new trial on all counts on which the jury returned guilty verdicts, including the sexual assault charge in count 3.
II
the charges
7Chamot and Ms. A.B. first became romantically involved when he visited Poland in 2000. In February 2001, Ms. A.B. brought her family to Canada to live with Chamot. Her son B. was 7, her son G. was 13, and her daughter B.B. was 12. According to the allegations, Chamot began assaulting the children almost immediately after they moved in with him.
8Chamot was originally arrested and charged with sexually assaulting B.B. in 2004. B.B. recanted that allegation under pressure from her mother and the charges against Chamot were dismissed at a preliminary inquiry. Chamot returned to the family home and, according to B.B., resumed the assaults. The attacks escalated to include repeated sexual intercourse with B.B. In the summer of 2007, B., who was about 14, walked in on Chamot and B.B. having sexual intercourse in her bedroom. Shortly afterward, B.B. complained to her mother. B.B. went to the police in 2009 and Chamot was charged with the offences against all three children.
9The 16-count indictment and the verdicts returned by the jury are summarized below. A brief description of each allegation follows:
Charge
Complainant
Dates
Verdict
1
Sexual interference (s. 151)
B.B.
March 1, 2001 – April 30, 2002
Not guilty
2
Sexual exploitation (s. 153)
B.B.
May 1, 2002 – April 30, 2006
Guilty
3
Sexual assault (s. 271)
B.B.
March 1, 2001 – August 31, 2007
Guilty
4
Uttering threats to cause death (s. 264.1(1)(a))
B.B.
January 1, 2005 – August 31, 2007
Not guilty
5
Assault (s. 266)
B.B.
January 1, 2005 – August 31, 2007
Not guilty
6
Assault with a weapon (s. 267(a))
B.B.
February 10, 2001 – December 31, 2004
Not guilty
7
Assault (s. 266)
G.
February 1, 2001 – March 1, 2001
Guilty
8
Assault with a weapon (s. 267(a))
G.
July 1, 2001 – August 31, 2001
Guilty
9
Assault causing bodily harm (s. 267(b))
G.
July 1, 2001 – August 31, 2001
Guilty
10
Assault (s. 266)
G.
January 1, 2002 – December 31, 2002
Not guilty
11
Assault with a weapon (s. 267(a))
G.
March 1, 2002 – July 1, 2002
Not guilty
12
Assault with a weapon (s. 267(a))
B.
March 1, 2001 – October 31, 2004
Guilty
13
Assault (s. 266)
B.
March 1, 2001 – October 31, 2003
Guilty
14
Assault (s. 266)
B.
March 1, 2001 – October 31, 2003
Not guilty
15
Assault with a weapon (s. 267(a))
B.
March 1, 2001 – December 31, 2004
Not guilty
16
Assault causing bodily harm (s. 267(b))
B.
March 1, 2001 – October 31, 2004
Guilty
Count 1 – Sexual Interference against B.B.
10B.B. testified that Chamot began coming into her bedroom and touching her breasts and stomach in 2001 when she was 12 years old. Initially, he touched her over her clothing, but later he put his hands under her clothing. The sexual assaults became more intrusive as time passed. Chamot forced B.B. to go to the basement and undress for him. He made her pose in the nude in front of a mirror and parade around with a book on her head. Chamot sometimes touched B.B.’s breasts and vagina. Chamot denied that any of these activities occurred. He testified that B.B. had never liked him. The jury acquitted on this count.
Count 2 – Sexual Exploitation against B.B.
11B.B. testified that in May 2002, Chamot began to touch her vagina. If she resisted, he would sometimes beat her. He also forced B.B. to masturbate him. B.B. described an event in January 2004 when she, Chamot and her mother were lying on a mattress watching a movie. According to B.B. Chamot put his hand on her vagina and began to rub it. Ms. A.B. realized that something was going on and confronted Chamot. This led to Chamot’s arrest, but the charges were dismissed at the preliminary inquiry when B.B. recanted her testimony at the request of her mother.
12B.B. testified that when Chamot returned to the home after the charges were dismissed, he immediately began to sexually assault her on a regular basis. He would come into her room or take B.B. into his room where he would force her to masturbate him.
13Chamot denied that any of the sexual activity occurred. He recalled the incident when he, B.B. and Ms. A.B. were lying on the mattress watching a movie. Chamot indicated that Ms. A.B. accused him of assaulting B.B. at that time, but that he denied it. He also denied putting any pressure on B.B. to recant her allegations. Chamot testified that his wife’s false suggestion that he had assaulted her daughter may have been precipitated by earlier discussions about sending B. back to Poland to live with a family. The jury convicted on count 2.
Count 3 – Sexual Assault against B.B.
14The allegation in count 3 encompassed the factual allegations in counts 1 and 2. The trial judge also instructed the jury that count 3 included B.B.’s allegation that she was forced to engage in sexual intercourse with Chamot beginning in 2004 or early 2005. B.B. was 16 years of age in 2004. According to her, she was forced to have sexual intercourse with Chamot approximately once per week and later, once every two weeks. She described the incident in 2007 when her brother, B., came into her room while Chamot was forcing himself on her. B. also described the incident, although he was not sure of the year. He testified that when he went to B.B.’s room to return her cell phone, he heard noises as if people were moving in the sheets. He saw Chamot’s torso moving up and down on the bed. B. ran from the room and went to his own bedroom. Chamot followed. Chamot told B. that it was Ms. A.B. in the bed with him and not B.B. B. also testified that his sister told him about the abuse in 2009.
15Chamot denied B.B.’s allegations. He also gave evidence that certain details of her story, such as the description of her room at the relevant time, were demonstrably inaccurate. The jury convicted.
Count 4 – Uttering Threats to Cause Death against B.B.
16B.B. testified that when she resisted Chamot’s sexual advances, he regularly assaulted her and threatened to kill her on five occasions if she did not acquiesce and remain quiet. Chamot denied threatening B.B. The jury acquitted on this charge.
Count 5 – Assault against B.B.
17This count related to the assaults which allegedly accompanied the death threats referred to in count 4. The jury also acquitted on this count.
Count 6 – Assault with a Weapon against B.B.
18This count related to an event described by B.B. which occurred shortly after she and her family came to Canada to live with Chamot. B.B. testified that she was 12 years old at the time. Chamot asked her about her computer work and when B.B. said she was already finished, Chamot became angry, dragged her down to the basement, pulled off her pants and underwear and beat her about five times with computer cables. B.B. suffered bruising which lasted for about one week. B.B. described at least two other incidents where she suffered similar beatings. Chamot denied that the beatings occurred, although he did agree with some of the evidence of B.B. about the events which she claimed precipitated the beatings. The jury acquitted on this charge.
Count 7 – Assault against G.
19G. testified that in February 2001 at one the first family dinners after the family arrived in Canada, Chamot became upset at the way G. had set the table. He picked G. up from his chair by the back of the neck and threw him against the hot water radiator. He also punched and kicked him, causing bruising to G.’s ribcage. Ms. A.B. also testified that shortly after their arrival in Canada, Chamot had assaulted G. at the dinner table. Chamot testified that at a family dinner a few months after Ms. A.B. and her children arrived in Canada, he became upset at G. after G. swore at him. He acknowledged that he hit G. on the back of the head with an open hand. They scuffled in the hallway and Chamot forced G. back to his chair at the table. Chamot denied throwing G. toward the radiator. The jury convicted on this count.
Counts 8 and 9 – Assault with a Weapon and Assault Causing Bodily Harm against G.
20G. testified that in the summer of 2001, Chamot became upset because the boys’ bikes were not put away properly. He ordered G. and B. to the basement. Chamot sent B. to the bathroom and locked the door. He told G. to remove his pants and underwear and bend over. Chamot hit G. 10 to 15 times with computer cables mostly on the lower back. Chamot denied that the incident occurred. The jury convicted on both counts.
Count 10 – Assault against G.
21This charge arose out of an incident in the spring of 2002. G. testified that Chamot would sometimes say that he or one of his siblings needed “a reboot”, meaning a beating. On this particular occasion, Chamot made a comment about a “reboot” which frightened G. G. was running away from Chamot when he ran into his mother. She stopped G. and handed him over to Chamot. Chamot punched and kicked G. several times. Chamot denied that the incident occurred. The jury acquitted on this count.
Count 11 – Assault with a Weapon against G.
22G. testified that in the spring of 2002, he was working for Chamot repairing computers. When Chamot inquired about his progress with the computers, G. made a sarcastic reply. Chamot pulled the chair out from under G. and then struck him with a computer. G. blacked out.
23Chamot denied the incident. He described various problems involving G. and his mother. According to Chamot, he tried to mediate those disputes and on one occasion determined that G. had been stealing from him. He required G. to recover the stolen property to teach him a lesson. The jury acquitted on this count.
Counts 12 and 16 – Assault with a Weapon and Assault Causing Bodily Harm on B.
24B. testified that when he was eight or nine years old, he and his brother were taken to the basement by Chamot. Chamot put B. in the bathroom and proceeded to beat G. with computer cables: see counts 8, 9. He then told B. to come out of the bathroom and to remove his pants and underwear. Chamot struck B. several times across the buttocks, legs, back and neck with computer cables. According to B., Chamot beat him for various reasons on many occasions. The computer cables were used on more than one occasion. Chamot testified that he struck B. only once and that he used a piece of a vacuum cleaner. The jury convicted on both counts.
Count 13 – Assault on B.
25B. testified that when Chamot found out that B. had thrown some sandwiches onto a neighbour’s balcony, he became very angry. Chamot grabbed B. by the back of the neck and kicked him down the stairs to the basement where he proceeded to beat him. Chamot acknowledged that an incident involving sandwiches that were thrown onto a neighbour’s balcony had occurred. He denied that he struck B. The jury convicted on this count.
Count 14 – Assault on B.
26B. testified that on one occasion, Chamot became angry with him for doing the dishes the wrong way. He grabbed B. by the head and threw it against an open drawer. Chamot denied that the incident occurred. The jury acquitted on this count.
Count 15 – Assault with a Weapon on B.
27B. testified that Chamot often beat him with a leather belt if he did not clean his room or perform some other chore properly. B. testified that the beatings occurred until Chamot’s original arrest in 2004. He could not say how often he was beaten. The jury acquitted on this count.
III
the crown appeal
A. The Ruling
28In making her submissions on sentence, Crown counsel accurately described the sexual assault charge in count 3 as “very general and broad”. She submitted that the trial judge should accept B.B.’s evidence and find as a fact for the purposes of sentencing that the sexual assault described in count 3 included the repeated rape of B.B. by Chamot over a lengthy time period. Crown counsel argued that this aggravating factor, combined with others, particularly the position of trust held by Chamot, merited a very lengthy penitentiary term.
29Counsel for Chamot submitted that the various verdicts returned by the jury suggested that the jury had not been satisfied that Chamot had sexual intercourse with B.B. He stressed the acquittals on counts 4 and 5. Counsel then submitted that count 3 was “void”. Counsel observed that the count alleged sexual assault over a time period during which B.B. was both under and over 14. Relying on R. v. Sharpe, 2007 BCCA 191, 219 C.C.C. (3d) 187, he argued that because the absence of consent was irrelevant when B.B. was under 14, but an essential element of the offence when B.B. was 14 and older, count 3 effectively alleged two different offences and should be quashed. Counsel had not raised any objection to count 3 before the jury returned its verdicts.
30In her reply submissions, Crown counsel did not take issue with the trial judge’s jurisdiction to consider the propriety of count 3 post-verdict, but argued that Chamot had not been prejudiced in any way by the manner in which count 3 was framed.
31In her reasons for sentence, the trial judge referred to the “overwhelming evidence of separate incidences of sexual intercourse.” The trial judge then made the following finding of fact:
Although the factual paths taken by the jury are unknown, it is open to me as the sentencing judge to conclude, as I do, that the evidence presented at trial proves beyond a reasonable doubt that Mr. Chamot had sexual intercourse with [B.B.].
32The trial judge next turned to counsel’s argument that count 3 was void. Applying the reasoning in Sharpe, the trial judge concluded that the jury could have “split” on the requisite elements of the allegation in count 3, some convicting on the basis that B.B. did not consent to the sexual activity and some convicting on the basis that the sexual activity occurred before B.B. was 14 when consent was irrelevant. The trial judge held that the Crown should have divided count 3 and separated the time period when B.B. was under 14 from the time period when she was over 14. The trial judge further held that the failure to properly divide the count had led to “the denial of a unanimous verdict”. She concluded that:
because Count 3 covers a period of time where the essential elements of the offence are different, the requirement of jury unanimity was undermined. As such the count must be quashed.
33In her endorsement on the indictment, the trial judge noted “Ct. 3) quashed s. 581(1)”.
34The trial judge also concluded that count 2 did not encompass the allegations of sexual intercourse. Consequently, having quashed count 3, the trial judge, in sentencing Chamot, did not take into account her finding that Chamot had repeatedly raped B.B.
B. Analysis
(i) The trial judge’s jurisdiction
35Mr. Shandler, for the Crown, correctly observes that the power of a trial judge to do anything other than accept a verdict as rendered by a jury is narrowly circumscribed: see R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R 857, at paras. 54-56; R. v. Henderson (2004), 2004 CanLII 33343 (ON CA), 189 C.C.C. (3d) 447 (Ont. C.A.), at paras. 29, 46-47; and R. v. Halcrow, 2008 ABCA 319, 94 Alta. L.R. (4th) 1, at para. 24. I am not aware of any case where a trial judge has purported to exercise his or her powers under s. 601 of the Criminal Code to quash a count for a defect in the pleadings after the jury has returned a verdict on that count.
36The pleadings provisions in the Criminal Code (ss. 581-601) are designed to ensure that an accused knows the charge against him or her and is able to make full answer and defence. The ultimate adequacy of the pleadings is tested against those purposes and not by whether the pleadings comply with any specific rule such as the “single transaction” rule: see s. 581(1).
37The wide remedial powers in the pleadings-related provisions of the Criminal Code further demonstrate that criminal allegations are not meant to stand or fall based on deficiencies in the pleadings. Instead, if inadequacies exist, they must be corrected in a manner that does not prejudice the right of the accused to a fair trial and the allegation must be decided on its merits: see R. v. City of Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, at p. 1308.
38The functional purposes underlying the criminal pleadings rules and the remedial philosophy expressed in those rules argue strongly against the existence of any power in a trial judge to consider a pleadings-related complaint post-verdict. Once the verdict is returned, the question of whether the pleadings could compromise an accused’s ability to defend himself or herself is no longer pertinent. The remedies provided in the Code to correct pleadings deficiencies also have no application post-verdict. After a jury returns a verdict, the question is not whether the accused can get a fair trial on the pleadings but whether any deficiencies in the pleadings rendered the trial so unfair as to vitiate the verdict. That is a question for an appellate court. The trial judge had no jurisdiction to quash count 3 after the jury returned its verdict on that count.
(ii) Should count 3 be quashed?
39In the normal course, a finding that the trial judge acted without jurisdiction would resolve the appeal in favour of the Crown. However, counsel for Chamot argues that the quashing of count 3 can be justified on other grounds. He is entitled to make these arguments either in response to the Crown’s appeal or as part of his own appeal from conviction.
40Counsel makes three arguments. First, he contends that even if the trial judge had no jurisdiction to quash count 3, her analysis of Sharpe is correct and should be adopted by this court in its review of the guilty verdict returned on count 3. Second, counsel submits that count 3 offended the single transaction requirement in s. 581(1) of the Criminal Code and that this court should quash the conviction on that basis. Third, counsel submits that the trial judge should have quashed count 3 at the outset of the trial on the basis that the charge could not be preferred without the written consent of the Attorney General.
(a) The application of Sharpe
41In Sharpe, the accused was charged with various sexual offences, including one count of indecent assault over a timespan encompassing the complainant’s fourteenth birthday. The trial judge had instructed the jury that to convict on the indecent assault charge, it had to first be satisfied beyond a reasonable doubt that the alleged acts had occurred. The trial judge next told the jury that if they were satisfied that the acts had occurred, they must convict on the count if satisfied that the acts occurred before the complainant’s fourteenth birthday. On the other hand, he indicated to the jury that if they were not satisfied that the acts had occurred before the complainant’s fourteenth birthday, they could still convict if the Crown proved beyond a reasonable doubt that the complainant had not consented to the acts.
42The British Columbia Court of Appeal held that the “two paths to conviction” laid out by the trial judge meant that different jurors could have convicted having found that the Crown had proved different sets of the requisite elements of the offence: Sharpe, at para. 19. The court stated, at paras. 36-37:
[T]he core problem with the count in the case at bar is that the jury may have convicted Mr. Sharpe on an offence that contained different essential elements. This was not the result of substantively different offences, but because C.M. turned 14 years of age. This meant that the Crown had the additional burden of proving that C.M. did not consent when he turned 14, which was a legally relevant distinction in the count. As a result, there could have been a split of jury: certain jurors could have convicted the appellant on the basis that the indecent acts were performed between 1 January 1978 and 3 August 1982, when C.M. was 13 years old and consent was no defence; others could have had a reasonable doubt that the sexual acts occurred when C.M. was 13 years old, but concluded that he did not consent to the acts when he was 14 years old.
… The simple point is that because of the way in which the count was framed, this Court is unable to determine whether the jury was unanimous with respect to the elements of the offence. [Emphasis added.]
43There is considerable merit to the Crown’s submission that, contrary to the analysis in Sharpe, the essential elements of a sexual assault charge (or an indecent assault charge) are the same regardless of the age of the complainant. On the analysis urged by the Crown, the absence of consent is always a constituent element of the charge. However, when the Crown proves that the complainant is under 14 (under 16 in the present legislation: see s. 150.1), the absence of consent is deemed to be established. On this analysis, proof that the complainant was under the age of consent and proof that the complainant in fact did not consent are but two different ways to prove the absence of consent.
44I need not decide whether the Crown’s characterization is correct. Even on the analysis in Sharpe, a jury’s verdict on a charge that straddles the age of consent does not necessarily compromise the unanimity of the jury’s verdict. It depends on the evidence, the positions of the parties and the specifics of the jury instruction.
45The present case is distinguishable from Sharpe in one very important way. In this case, the jury was told that before it could convict Chamot on count 3, it had to be satisfied that the Crown had proved the absence of consent beyond a reasonable doubt. Unlike the trial judge in Sharpe, this trial judge did not distinguish between conduct prior to the complainant’s fourteenth birthday and conduct after her fourteenth birthday. This jury was not given “two paths” to conviction. On the instruction given to this jury, all of the jurors must have been satisfied that B.B. did not consent to the activity that formed the basis for the verdict on count 3. Individual jurors could, of course, come to their own conclusion as to acts committed by Chamot: see R. v. S.M.R. (2004), 2004 CanLII 31916 (ON CA), 189 C.C.C. (3d) 152 (Ont. C.A.), at para. 75, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 289.
46Not only did the trial judge’s instructions render any potential distinction between the pre- and post-aged 14 time periods irrelevant, those instructions reflected the position taken by the defence. Chamot denied all of the alleged sexual activity involving B.B. There was no suggestion of any possibility that if the acts occurred, they were consensual. In pre-charge submissions, counsel for Chamot made it clear that consent was not an issue.
47Having regard to the evidence, counsel’s position, and the trial judge’s instructions, there is no reason to doubt the unanimity of the jury’s verdict on count 3. They were clearly satisfied beyond a reasonable doubt that Chamot engaged in non-consensual sexual activity with B.B. at some time during the time period covered by count 3.
(b) The single transaction argument
48A count in an indictment must “in general apply to a single transaction”: Criminal Code, s. 581(1) (emphasis added). A count that does not comply with s. 581(1) is not necessarily bad in law: see R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 82. A trial court may, however, quash, amend or divide a count if the accused is prejudiced by the way the count is framed: see Criminal Code, ss. 590(2), 601. This court has the same powers on appeal even if no objection was taken to the count at trial: see R. v. Rafael, 1972 CanLII 640 (ON CA), [1972] 3 O.R. 238 (C.A.), at p. 240; R. v. Sandu, 2009 ONCA 102, 242 C.C.C. (3d) 262, at para. 25.
49This court has repeatedly indicated, often in reference to allegations of sexual abuse that span a wide timeframe and several discrete incidents, that a single transaction can encompass several different acts: see e.g., R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 34 O.R. (3d) 332 (C.A.), at p. 339. Count 3 alleged a series of acts all of which involved the same complainant and formed part of an ongoing course of conduct within the same family dynamic. Count 3 amounted to an allegation of ongoing, systematic sexual abuse of B.B. That conduct, as alleged, described an ongoing “single transaction”: see R. v. Hulan, 1969 CanLII 306 (ON CA), [1969] 2 O.R. 283 (C.A.), at p. 290.
50In holding that count 3 does not offend the single transaction rule, I do not mean to suggest that a trial judge could not exercise his or her discretion to divide or amend the count. The issue does not arise here, as the trial judge was not asked to amend or divide count 3.
(c) Was the indictment properly preferred?
51As indicated above, Chamot was originally charged with sexually assaulting B.B. over a time period that ended in 2004. He was discharged at the preliminary inquiry after B.B. recanted her evidence. New charges were laid, however, after B.B came forward with further allegations in 2009. At the second preliminary inquiry, the sexual assault allegation in the information alleged assaults that occurred beginning in 2004, after Chamot had been discharged at the first preliminary inquiry and returned to live with Ms. A.B. and her family. At the end of the second preliminary inquiry, the Crown argued that the evidence supported Chamot’s committal for trial on a charge of sexual assault spanning the entire period from 2001 to 2007. The preliminary inquiry judge agreed and committed the appellant on a charge of sexual assault covering the six-year period. Relying on that committal, the Crown preferred an indictment containing count 3 alleging sexual assault between 2001 and 2007.
52At the commencement of the trial, counsel for Chamot moved to quash count 3. He argued that because Chamot had been discharged on a count alleging sexual assault up to 2004, the Crown could only indict Chamot on a charge referable to that time period with the written consent of the Attorney General. Counsel relied on s. 577 of the Criminal Code, which requires the Attorney General personally consent in writing to the preferring of an indictment when “a preliminary inquiry has been held and the accused has been discharged”. The Attorney General did not consent in writing to the preferral of this indictment.
53The trial judge rejected this argument and relied instead on the power to prefer indictments found in s. 574 of the Criminal Code. Section 574(1)(a) declares that the prosecutor may prefer an indictment on “any charge on which that person was ordered to stand trial”. Chamot was ordered to stand trial on an allegation of sexual assault covering the entire time period. That committal was not challenged. It provided a clear basis under s. 574(1)(a) for the preferral of an indictment without the personal consent of the Attorney General.
54I agree with the trial judge. Section 577 does not speak to indictments which find their authority in a prior committal for trial on the same count as is contained in the indictment. Rather, s. 577 speaks to cases where no preliminary inquiry has been held or an accused has been discharged.
55Chamot relies on R. v. Tapaquon, 1993 CanLII 52 (SCC), [1993] 4 S.C.R. 535, for the proposition that he could not be indicted on count 3 without the Attorney General’s written consent. In Tapaquon, the accused had been discharged on the offence at the preliminary inquiry and committed for trial on a lesser offence. The Crown purported to prefer an indictment on the charge for which the accused had been discharged. This factual difference distinguishes Tapaquon from this case. Here, as noted above, Chamot was committed for trial on the sexual assault charge alleged in count 3 of the indictment. The validity of that committal is not affected by the earlier discharge on an allegation encompassing part of the same timeframe.
56Tapaquon is also distinguishable based on a subsequent amendment to the statutory provision in issue in Tapaquon. When Tapaquon was decided, s. 577 of the Criminal Code appeared to preclude the laying of the same charge in a new information after an accused had been discharged at a preliminary inquiry, at least in cases where the accused was to be tried by a jury. That language has been removed from s. 577. The present wording does not bar the laying of a second information after an accused is discharged at a preliminary inquiry. If, as occurred here, the accused is committed for trial at the second preliminary inquiry, s. 577 does not apply and the written consent to the preferral of the indictment by the Attorney General is not needed. Count 3 was properly preferred.
C. Conclusion on the Crown’s Appeal
57I would allow the Crown’s appeal, and set aside the order quashing count 3 of the indictment. The nature of any further order depends on the resolution of Chamot’s appeal. I now turn to that appeal.
IV
chamot’s appeal
58Chamot raises several grounds on his appeal from conviction. As I am satisfied that the trial judge fell into reversible error in failing to give an instruction limiting the use the jury could make of evidence of Chamot’s bad character, I need not consider the other grounds on which the convictions are challenged. I will, however, address one argument made by counsel for Chamot in respect of the trial judge’s fact-finding power on sentencing.
A. the limiting instruction on the use of the bad character evidence
59The jury heard a great deal of evidence that placed Chamot in a very bad light. On the testimony of the complainants and Ms. A.B., Chamot was a cruel and brutal person who terrorized three young children virtually from the time they arrived in Canada. Not only did he physically abuse the boys and sexually and physically abuse B.B., he psychologically abused the children, especially B. According to the evidence, Chamot constantly berated and belittled B. in front of other people. If the abuse was not enough, there was also evidence that Chamot used the children as very cheap labour to further his own financial ends.
60Evidence of Chamot’s constant mistreatment of the children over several years had to be heard by the jury. Some of it related to the actus reus of the various charges in the indictment. Apart entirely from evidence going directly to a particular charge, much of this evidence was potentially admissible so that the jury could assess the credibility and reliability of the children’s evidence. To properly evaluate that evidence, the jury had to have a sense of the world in which the children alleged they lived during the relevant events. On their evidence, Chamot’s violent and cruel conduct toward them was a central feature of that world.
61While the search for the truth demanded that the jury hear evidence that put Chamot in a very bad light, that search equally demanded that the jury understand the purposes for which it could not use that evidence in its deliberations. No such limiting instruction was given.
62The jurisprudence is clear that when there is a real risk that evidence properly admitted for one purpose could be used by the jury for an improper purpose, the trial judge must caution against that misuse of the evidence: see e.g., R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 691. The risk of misuse of evidence is particularly high in cases like this one where the Crown alleges morally reprehensible conduct in the context of the long-term abuse of one or more children within a household. When a jury hears the kind of evidence this jury heard, the trial judge must make it clear that the jury cannot use the evidence to infer that the accused is a bad person worthy of punishment regardless of his or her culpability on the specific allegations. The trial judge must also tell the jury that it cannot infer from that evidence that because the accused is the kind of person likely to abuse children, he or she is therefore guilty of the specific allegations.
63The jurisprudence requiring a proper limiting instruction is loud and clear. For example, in R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, the charges alleged that the accused had assaulted his niece over a number of years. Other children in the family came forward to give evidence of the physical abuse and brutality within the home. After explaining that the evidence of the accused’s mistreatment of the other children was admissible to show the condition and atmosphere within the home and to explain the absence of any complaints, the court held that the trial judge should have been given a proper limiting instruction. Iacobucci J. for the majority held at p. 734:
Given that the testimony might have a strong prejudicial effect on the jury and that the jury might then convict on the basis that the accused is a bad person of the sort likely to commit the offences in question, clear directions to the jury about the use they could make of the testimony were essential. More specifically, the judge was required to explain clearly in the instructions to the jurors that they must not infer from the evidence that tended to show the appellant’s bad character that the appellant was guilty because he is the sort of person who is likely to commit the offences in question. [Emphasis added.]
This court has repeatedly applied the ratio from B. (F.F.) in cases like this one when properly admitted evidence inevitably blackened the character of the accused: see e.g. R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at pp. 9-10, 14; R. v. J.A.T., 2012 ONCA 177, 290 O.A.C. 130, at paras. 55, 67.
64Mr. Shandler acknowledged that this trial judge did not give a limiting instruction like that described in B. (F.F.). He did refer to two passages from the jury charge that he submitted conveyed to the jury the essential message that propensity reasoning from Chamot’s bad character to a finding of guilt was not permitted.
65The first passage appears in the instruction about the use that the jury could make of a witness’s criminal record. Chamot had testified. The trial judge said:
It is very important that you understand that you must not use the fact, number or nature of the prior convictions to decide or help you decide that Andrew Chamot is the sort of the person who would commit the offences charged.
66This instruction was correct and necessary. Chamot did have a criminal record involving an assault on B. However, the instruction targeted the criminal record and left untouched the use that the jury could make of all of the evidence about Chamot’s mistreatment of the children which had not resulted in any criminal convictions.
67The second passage in the instructions relied on by the Crown was given during the trial judge’s similar fact evidence instruction. The trial judge had ruled that the evidence given by each child on the charges involving the alleged beatings with the computer cables was admissible on the other counts involving the alleged beatings with the computer cables (counts 6, 8, 9, 12 and 16). In the course of explaining to the jury the limits on the use of similar fact evidence, the trial judge said:
If you find nothing more than that Andrew Chamot is a bad person or of bad character or the sort of person who would commit this type of offence, each complainant’s evidence must be considered separately without reference to the evidence of the others. Under our system, it is not an offence to be a bad person or to have a bad character.
68There are two problems with this instruction. First, by its terms, it does not speak to the use of evidence of bad character on those counts not included as similar fact evidence counts. Those counts included the sexual assault allegation in count 3 and three other charges on which the jury convicted Chamot.
69Second, the instruction can be read as indicating that evidence of bad character did have evidentiary value, although it did not permit the use of evidence relating to one count on other counts. As I read the instruction, it limits only the use of evidence of bad character as similar fact evidence. It does not limit the use of the evidence apart from its use as similar fact evidence.
70The trial judge’s instructions set out above in para. 67 appear to be taken from this court’s judgment in R. v. Thomas (2004), 2004 CanLII 33987 (ON CA), 72 O.R. (3d) 401 (C.A.). In Thomas, Rosenberg J.A. outlined, at para. 54, a series of suggestions as to the content of a similar fact instruction. One of the suggestions began with language almost identical to that used by the trial judge. Unfortunately, the trial judge did not refer to the entirety of the suggested instruction. Immediately after the passage referred to by the trial judge, Rosenberg J.A. added:
[N]o one may be convicted or punished for simply being a bad person or having a bad character. It is not permitted in our system to reason that because a person is of bad character or the sort of person who commits sexual offences he must be guilty of the offences charged.
71The language from Thomas omitted by the trial judge in her instructions speaks directly to and interdicts the impermissible use of the evidence of Chamot’s bad character. I think that kind of limiting instruction was necessary in this case.
72Crown counsel, in support of his contention that the instruction was adequate, points to the absence of any objection by counsel for Chamot and the different verdicts arrived at by the jury. He contends that the absence of an objection indicates that counsel was satisfied that the jury understood the limited use of the evidence and that the different verdicts (eight acquittals and eight convictions) are inconsistent with the kind of broad brush assessment that would inevitably flow from the jury’s misuse of the bad character evidence. Both arguments have some force. However, in the end, they do not convince me that the charge was adequate.
73First, counsel’s failure to object can be a very important consideration when assessing the effect of a non-direction: see e.g., R. v. J.S., 2010 ONCA 606, at para. 7. For example, in cases where the potential misuse of the evidence is debatable, counsel’s failure to object at trial may well influence the appellate court. However, in this case, the quantity and quality of the bad character evidence suggests a very significant risk that the jury could misuse that evidence absent a proper limiting instruction. Certainly, there could be no tactical reason for counsel’s failure to object. The absence of an objection in these circumstances does not cause me to conclude that the non-direction was not significant.
74Second, while I can accept that the jury’s different verdicts are consistent with a careful count by count assessment of the evidence, I cannot read as much into those different verdicts as does the Crown. It does not follow that because the jury made a careful count by count assessment of the complainants’ credibility that it did not misuse the evidence of Chamot’s bad character. The jury could have done both and in doing so arrived at different verdicts on different counts. Ultimately, the different verdicts do not cause me to conclude that despite the absence of an adequate limiting instruction, the jury got the proper message.
75I am satisfied that the failure to give a proper limiting instruction with respect to the evidence of Chamot’s mistreatment of the children constitutes an error in law that requires the quashing of all convictions, including the sexual assault conviction, and the ordering of a new trial.
B. The Trial Judge’s Fact Finding on Count 3
76As I would order a new trial on the counts on which Chamot was convicted, including the sexual assault charge, it is unnecessary to address the arguments concerning the trial judge’s fact-finding role on sentence. There is, however, one aspect of that part of the appeal which I think should be addressed.
77In speaking to sentence, Crown counsel argued that the sexual activity alleged in count 3 included the repeated rape of B.B. over several years. While counsel agreed that the jury’s verdict did not necessarily indicate that the jury had found Chamot raped B.B., she argued that the verdict on count 3, considered in the context of the other verdicts, did not preclude the trial judge from making the finding on sentencing that Chamot had repeatedly raped B.B. Crown counsel submitted that the trial judge should make that finding for the purpose of determining the appropriate sentence. As outlined above, although the trial judge did make the finding sought by the Crown, she quashed count 3 and, therefore, did not sentence Chamot on that charge.
78Mr. Harris, counsel for Chamot, accepted that count 3 as framed included allegations of sexual misconduct ranging from improper touching to forced intercourse. He also accepted that fact finding for the purpose of sentencing is a matter for the trial judge, and that in exercising that power in jury cases, the trial judge must operate within the parameters established by s. 724(2) of the Criminal Code. Section 724(2)(a) requires the judge to “accept as proven all facts, express or implied, that are essential to the jury’s verdict”. Section 724(2)(b) allows the judge to make any additional relevant findings disclosed by the evidence heard at trial or presented on sentencing.
79Mr. Harris submits that the trial judge’s fact-finding powers granted by s. 724 must be read in light of an accused’s constitutional right to trial by jury under s. 11(f) of the Canadian Charter of Rights and Freedoms. He contends that allowing a trial judge to make a finding that the assault involved rape as opposed to some other form of sexual assault subverts an accused’s right to have his or her guilt determined by a jury. As I understand this submission, the distinction between forced sexual intercourse and other forms of sexual assault is so significant in fixing the appropriate penalty that it should be regarded as going to culpability and not merely as an aggravating factor on sentence. Matters of culpability are said to be for the jury.
80I cannot accept this submission. First, by suggesting that a distinction between forced sexual intercourse and other forms of sexual assault is relevant to culpability, counsel is seeking to reintroduce, by way of judicial interpretation of the constitutional right to trial by jury, the long-discarded distinction between the crime of rape and other forms of sexual assault. Under the present legislation, the distinction between rape and other forms of sexual assault no more goes to culpability than would the distinction between various weapons on a charge of assault with a weapon. Those distinctions are important, but they are relevant to sentencing, not to culpability.
81Second, an accused’s right to trial by jury is not compromised when the trial judge makes a finding as to the nature of the assault involved in the allegation. Chamot’s reliance on R. v. Finta (1992), 1992 CanLII 2783 (ON CA), 73 C.C.C. (3d) 65, at p. 174 (Ont. C.A.), aff’d 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701, is misplaced. Finta stands for the proposition that factual issues central to a jury’s determination of guilt must be made by the jury if an accused elects trial by jury. On count 3 as it went to the jury, a determination by the jury as to whether Chamot raped B.B. was in no way essential to the jury’s verdict.
82In my view, having regard to the charge as framed and the jury’s verdicts on all of the counts, it was open to a trial judge to find for the purpose of sentencing on count 3 that Chamot had repeatedly sexually assaulted B.B. That finding could only be made if the trial judge was satisfied beyond a reasonable doubt that Chamot had engaged in repeated sexual intercourse with B.B.: see Criminal Code, s. 724(3)(e).
V
CONCLUSION
83I would allow the Crown’s appeal and set aside the order quashing count 3. I would allow Chamot’s appeal and quash the convictions returned by the jury. I would order a new trial on counts 2, 3, 7, 8, 9, 12, 13 and 16. The acquittals stand.
RELEASED: “DEC 21 2012”
“DD”
“Doherty J.A.”
“I agree H.S. LaForme J.A.”
“I agree C. Stephen Glithero”
