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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.
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, Cronk and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.R.M.
Appellant
Lauren M. Wilhelm, for the appellant
Joanne K. Stuart, for the respondent
Heard: March 31, 2015
On appeal from the convictions entered by Justice Kim A. Carpenter-Gunn, of the Superior Court of Justice, sitting with a jury, on September 20, 2013 and the sentences imposed by Justice Carpenter-Gunn on October 18, 2013.
ENDORSEMENT
1Following a trial by judge and jury, the appellant was convicted of two counts of sexual interference involving S.K. and C.K., the two young daughters of his girlfriend. S.K. was five years of age and C.K. was four years old at the time of the offences. The appellant was acquitted of one count of assault in respect of each of the complainants. He received a global sentence of five years’ imprisonment: two and one-half years, consecutive, on each sexual interference conviction.
2The appellant appeals from his convictions and seeks leave to appeal his sentences.
3The appellant submits that:
i) the trial judge erred in failing to instruct the jury that the evidence of one complainant was not admissible on the counts relating to the other, and that it could not use propensity reasoning to support its verdicts;
ii) the trial judge erred in admitting the out-of-court statements of S.K. to her grandparents as evidence of the truth of their contents; and
iii) the jury instruction on the manner in which the jury should assess the evidence of S.K.’s hearsay statements was fatally flawed.
4We see no merit in the second and third submissions. We agree with the trial judge’s ruling admitting S.K.’s statements to her grandparents for their truth. The instruction on those statements was adequate and there was no objection to it at trial.
5We are, however, satisfied that the first ground of appeal must succeed.
CONVICTION APPEAL
6Relying on the decision of this court in R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 and other cases to the same effect, the appellant argues the trial judge erred in law by failing to instruct the jury it could not use the evidence relating to one count as evidence on the other counts, or use the evidence relating to one set of allegations concerning one complainant as bad character or propensity evidence in its consideration of the allegations regarding the other complainant.
7In this case, the complainants’ allegations against the appellant were joined in one indictment. The Crown did not bring a similar act application and the defence did not seek a severance. Accordingly, the jury heard all the Crown’s evidence in respect of all allegations in the same trial.
8The complainants first disclosed the appellant’s abuse during a weekend visit with their paternal grandparents. While S.K. and C.K. were watching television with their grandfather, S.K. described the appellant’s sexual abuse. Within minutes, C.K. indicated that the appellant had sexually abused her too. The core of the complainants’ descriptions of the sexual abuse was essentially identical. Later, at their grandfather’s request, the girls repeated their allegations to their grandmother. When the police became involved shortly thereafter, both complainants provided videotaped statements in which they implicated the appellant in sexual abuse.
9At trial, C.K. adopted her statement to the police and repeated her allegations of sexual abuse by the appellant. S.K. also testified at trial. However, she gave no evidence of any sexual misconduct by the appellant. Pursuant to the trial judge’s ruling, S.K.’s description of the appellant’s sexual conduct with her was led through the testimony of S.K.’s paternal grandparents about S.K.’s out-of-court statements to them.
10The appellant also testified. He denied any wrongdoing.
11In her charge, the trial judge gave neither of the warnings mandated by M.(B.). Specifically, she did not instruct the jury that it was to consider each charge separately and not use evidence relating to one count as evidence on any of the other counts. Nor did she tell the jury that it could not use the evidence on one count as proof that the appellant is the sort of person who would commit the offences charged.
12In this case, given the interrelated nature and timing of the young complainants’ disclosure of the appellant’s abuse to their grandparents, and the substantive similarity of their allegations, there was little danger that the jury would engage in the type of prohibited propensity reasoning contemplated in M.(B.). See also R. v. Rarru, 1996 CanLII 195 (SCC), [1996] 2 S.C.R. 165.
13However, in our view, there was a real danger that, absent the proper limiting instructions, the jury would engage in a global assessment of the complainants’ credibility on the sexual interference allegations. This danger was heightened by the fact that the Crown’s case in respect of S.K.’s allegations depended entirely on hearsay, while the Crown’s case pertaining to C.K.’s allegations rested on her in court testimony. Potentially, therefore, the Crown’s case was much stronger in respect of C.K.
14Where, as here, a case involves multiple counts of sexual abuse and multiple complainants, it is incumbent on the trial judge to warn the jury that it cannot use the evidence on all the counts to prove any one count: M.(B.), at para. 41; R. v. H.(F.J.) (2000), 2000 CanLII 5700 (ON CA), 145 C.C.C. (3d) 169, (Ont. C.A.), at para. 12. As we have said, this did not occur here.
15The Crown acknowledges on appeal that the cross-count instruction normally should be given. However, Crown counsel argues that the adequacy of the jury charge must be assessed from a functional perspective to determine whether it properly equipped the jury to perform its task. She contends that, in the unique circumstances of this case and when the charge is read as a whole, the jury would have understood that it could not consider the evidence of one complainant as corroborative of that of the other.
16In support of this contention, Crown counsel relies on: i) the structure of the jury charge, in which the trial judge examined each count, and much of the evidence related to each count, separately and sequentially; ii) Crown counsel’s warning, in his closing address to the jury, against the use of evidence pertaining to one count as corroborative of the other counts; iii) the propensity instruction provided to the jury regarding the appellant’s criminal record; iv) the fact that the appellant was acquitted on the two assault charges, suggesting the jury considered the evidence on each count separately; and v) the appellant’s failure to request the limiting instruction in question and his related failure to object to its absence from the jury charge.
17We accept that the jury charge must be read as a whole and from a functional perspective. However, none of the factors identified by Crown counsel, either alone or cumulatively, cures the non-direction in this case. Indeed, virtually all the factors relied on by the Crown, described above, were considered, and specifically rejected, by this court in H.(F.J.) as insufficient to overcome the type of non-direction at issue here: H.(F.J.), at para. 17 (regarding the structure and contents of the jury charge); at para. 20 (concerning warnings about the law provided by counsel in their closing addresses to the jury); and at paras. 22-23 (regarding the acquittal of an accused on some charges and his convictions on others, on a multi-count indictment).
18In the circumstances of this case, the non-direction at issue is fatal to the sexual interference convictions. As in H.(F.J.), the problem with the charge here, is its silence about what the jury could not do with the evidence of one complainant in relation to that of the other. And, again as in H.(F.J.), given the similarities between S.K.’s and C.K.’s allegations, there was a real danger that, absent adequate warning, the jury might improperly consider the evidence of one of the complainants as corroborative of that of the other.
19We are unable to conclude that there is no reasonable possibility that the jury could have returned different verdicts on the sexual interference charges. Accordingly, this is not an appropriate case for application of the proviso. See H.(F.J.), at paras. 24-25.
Disposition
20The conviction appeal is allowed and a new trial is ordered on the two sexual interference counts. In light of this disposition, we do not reach the appellant’s application for leave to appeal sentence.
“Doherty J.A.”
“E.A. Cronk J.A.”
“C.W. Hourigan J.A.”
