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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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

DATE: 20220531 DOCKET: C67568

Feldman, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

D.M. Appellant

Counsel: Frank Addario and Lynda Morgan, for the appellant Erica Whitford, for the respondent

Heard: April 19, 2022

On appeal from the conviction entered on June 27, 2019 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on September 27, 2019, with reasons reported at 2019 ONSC 5407.

Paciocco J.A.:

OVERVIEW

1D.M. was convicted after a trial by judge and jury of committing sexual offences against the complainant, the son of a family friend. The offences allegedly commenced when D.M. was 19 years of age and ended when he was 20. The complainant was 17 or 18 years old during the relevant time period, but because he has a global intellectual disability, the complainant has the mental capacity of a small child.

2The Crown alleged that there were three distinct incidents of sexual violation that occurred, but each of the three counts – sexual exploitation of a person with a disability contrary to s. 153.1 of the Criminal Code of Canada, R.S.C. 1985, c. C‑46, sexual exploitation of a young person contrary to s. 153(1)(a), and sexual assault contrary to s. 271 – was a “rolled-up” charge covering more than one of the alleged incidents.

3After the jury found D.M. guilty of all three charges, the trial judge stayed the sexual assault charge and sentenced D.M. to a global sentence of five years of imprisonment on the two sexual exploitation offences.

4D.M. identifies numerous grounds of appeal relating to his convictions. I would dismiss some of those grounds of appeal, but because of the errors that did occur, I am persuaded that the jury was not equipped to properly evaluate the complainant’s credibility and that a miscarriage of justice occurred. I would allow the appeal, set aside the convictions, and order a new trial. It is therefore unnecessary to address D.M.’s application for leave to appeal the sentence the trial judge imposed.

THE PRELUDE TO THE CHARGES

5D.M.’s aunt and uncle, whom D.M. regularly visited, were neighbours and friends with the complainant’s parents. D.M. met the complainant through his aunt and uncle and spent time with the complainant when visiting. The complainant’s parents trusted D.M. with the complainant and allowed D.M. to take him on outings, including fishing and hunting.

6On March 26, 2016, the complainant, the complainant’s father, their neighbour S.R., and S.R.’s nephew C.M. were on an ice fishing trip at a camp in northern Ontario (the “northern camp”). On that day, the complainant told his father that D.M. had sexually abused him. The father phoned D.M. and confronted him. D.M. denied the allegations.

7These events led to the police being contacted. On March 29, 2016, the complainant gave a videotaped statement to the police describing the three alleged sexual incidents. While the complainant had difficulty in describing the incidents, the gist of his communication was that:

• The first incident occurred in the previous summer in the bedroom of D.M.’s home during an outing with D.M. to get a snowplough for D.M.’s four‑wheeler. The complainant would have been 17 years old at the time. He described performing fellatio on D.M. at D.M.’s instruction while D.M. wore a condom, and then being subjected to anal intercourse (the “D.M. house incident”).
• The complainant thought that the second incident occurred in the fall during a duck hunting outing with D.M. in a field owned by S.R. The complainant alleges that he complied with D.M.’s instructions by giving D.M. oral sex while D.M. was driving. The complainant described his head as being under, but not touching the steering wheel. He told the police that D.M. stopped the truck and subjected him to anal intercourse (the “truck and field incident”).
• The third incident occurred at a nearby hunt camp belonging to the complainant’s family (not the “northern camp”), when the complainant and D.M. went to the hunt camp to “get cigars” for a guest of D.M.’s aunt and uncle. The complainant alleges that before they retrieved and returned with the cigars, D.M. subjected him to anal intercourse without a condom (the “hunt camp incident”). It was left unclear whether this incident happened before or after the complainant turned 18.

8The complainant told the interviewing officer that he first told C.M. about sexual activity with D.M., and that C.M. told him to tell his father, which he did. He also said he used his father’s phone to tell his mother.

9This led to the three charges against D.M. Count 1, involving sexual exploitation of a person with a mental disability, was based on D.M.’s alleged acts of counselling or inviting the complainant to perform oral sex in connection with the D.M. house incident and the truck and field incident. The hunt camp incident was unrelated to this charge. Count 2, involving D.M.’s sexual exploitation of a minor by touching the complainant with his penis, embraced the anal intercourse that allegedly occurred during each of the three incidents. Count 3, the sexual assault charge, captured all of the sexual touching that occurred during each of the three alleged incidents.

THE TRIAL

The Complainant’s Evidence

10A videotape of the complainant’s police statement in which he recounted the three allegations just described was admitted at trial, pursuant to s. 715.2 of the Criminal Code.

11The complainant also testified. The Crown explored with the complainant whether he knew what it meant to tell the truth. [1] When asked what not telling the truth is, he said, “Lying.” When asked the difference between telling the truth and a lie, he gave the example of him hitting someone and then saying he did not do so.

12In his testimony he largely confirmed the allegations he made in his police statement and provided additional information relevant to this appeal:

• With respect to the truck and field incident, the complainant used a photograph, Exhibit 7(B), to identify the location where D.M. parked the truck, near a tree stump.
• He was asked by D.M.’s trial counsel about telling others what had happened, and he confirmed that he told his father, his mother, S.R., C.M., D.M.’s aunt and uncle, D.M.’s mother, and 3 other people.

Evidence of the Complainant’s Father

13The complainant’s father was called as a witness by the Crown. He testified that, on March 26, 2016, while on an ice fishing trip to the northern camp, the complainant tearfully disclosed being sexually abused by D.M. The complainant made the disclosure after being encouraged to do so by C.M. The complainant’s father testified that as a result of the complainant’s disclosure, he phoned and confronted D.M., who denied the allegations.

14Under the close supervision of the trial judge, the trial Crown did not secure the details of the complainant’s allegations from the complainant’s father. The details that were provided by the complainant’s father were sought by D.M.’s trial counsel during cross-examination. When prompted by D.M.’s trial counsel, the father testified that the complainant told him he had been “sexually molested” two or three times in the fall of 2015, over a period of roughly six months.

15The father also testified that the day after the allegations had been made, he spoke to D.M., D.M.’s mother, and D.M.’s aunt and uncle and met briefly with D.M. and his uncle at his own home.

16The complainant’s father also testified that persons who had been welcome to the hunt camp, including D.M., stored their own mattresses there to be put on the bed frames when they stayed. In addition to their mattresses, members of D.M.’s family also had some furniture and kitchen items in drawers at the hunt camp. The complainant’s father testified that when he went to the hunt camp a few days after he had confronted D.M., D.M.’s mattress was gone, but not the furniture. He testified that a mattress belonging to D.M.’s uncle had also been removed. He also agreed during cross-examination that he had not looked in the drawers to see if the kitchen items had been removed. When D.M.’s trial counsel suggested during cross-examination that the complainant’s father would not have allowed D.M. onto the hunt camp to remove his items, the complainant’s father said that he would “love for them to [take] all their stuff off the property.”

17In the course of cross-examining the complainant’s father, D.M.’s trial counsel pursued a defence theory as to why the complainant might have made up the allegations. D.M.’s trial counsel suggested to the complainant’s father that the complainant was upset when he separated from the complainant’s mother, and the complainant’s father agreed. The complainant’s father then disagreed with D.M.’s trial counsel’s suggestion that the complainant made up the allegations against D.M. as a means of “obtaining attention or sympathy”.

Evidence of C.M.

18C.M. testified for the Crown and spoke only generally about receiving a complaint from the complainant in March 2016 while at the northern camp with S.R., the complainant and the complainant’s father.

19In cross-examination, D.M.’s trial counsel suggested to C.M. that he was mischievous and irresponsible by nature and drunkenly encouraged the complainant to make the sexual molestation allegation against D.M., thinking it would be funny and a way to get D.M. C.M. denied that he had done so and denied any animosity against D.M. There was conflicting evidence led during the trial about prior confrontations between D.M. and C.M.

Evidence of S.R.

20S.R. also testified for the Crown. He gave incidental testimony about the disclosure at the northern camp. He also explained that the road in Exhibit 7(B) is an off-shoot of the main road on his property and is used every five to seven years by dump trucks to extract clay. When asked if it is a busy area, he said, “No. Four-wheelers really only because as the road’s being dug away, normal vehicles cannot go down in the hole”. He also testified that when he returned from the northern camp, he noticed tracks in the snow leading to his barn, and that property that belonged to D.M.’s family had been removed.

The Expert Evidence of Dr. Valerie Temple

21An expert witness, Dr. Valerie Temple, testified for the Crown “as an expert in the area of clinical psychology, particularly with respect to the testing and assessment of persons with developmental disabilities.” On the first day of trial, the trial Crown indicated that Dr. Temple was being called to confirm and explain the complainant’s intellectual disability, a relevant consideration relating to his capacity to consent. The trial Crown said that Dr. Temple would not be asked directly whether the complainant was capable of consenting. The trial judge asked if Dr. Temple was being offered “in terms of [the complainant’s] credibility and reliability as a witness”. The trial Crown responded, “Well, it’s almost even less than that.” The trial Crown said that it anticipated that Dr. Temple would testify about the complainant’s ability to talk about concrete things that the complainant understands, such as what happened to him, but that he is not able to process abstract things. The trial Crown suggested that the jury could use this testimony to conclude that the complainant is not so disabled as to not understand what happened to him. The trial Crown added:

I’m staying away from the credibility, I’m not asking questions about, you know, is he able to lie? Is he able to tell the truth? I, I think that would be an area that my friend would object to and I’m not asking her about that. But certainly just explaining. You know and I think, you know, her bottom line will be that certainly having a significant intellectual disability will affect all aspects of his ability to process things, but it’s worse when it comes to abstract concepts as opposed to him trying to recite concrete things. [Emphasis added.]

22D.M.’s trial counsel indicated that he would not oppose the qualification of Dr. Temple as an expert on the understanding that she would stay within the bounds identified by the trial Crown. In her testimony, Dr. Temple stayed within those bounds. She described the tests she administered and her conclusion that the complainant had an intellectual disability. She assessed him to be below the lowest percentile in his results in all intellectual areas tested, explained that his intellectual ability falls significantly below what would be expected for his age group, and testified that in some sectors his ability was similar to a young child. In the case of daily living skills, the complainant’s scores fell in the two to six-year-old range. Dr. Temple cautioned that this does not mean the complainant cannot do things, only that his level of functioning is significantly below others. Dr. Temple made clear that the age-equivalence measurements she offered do not mean to suggest that the complainant’s capacity is that of a child of the suggested age: “He’s had 21 years’ experience in the world, so there will be some things that he has learned through [rote] to do a little better than others.”

23Dr. Temple gave little testimony about the complainant’s understanding of abstract and concrete things. She used the example of fruit to illustrate the difference, explaining that he could understand what an apple is, “[w]hereas the concept of fruit or the idea that pineapple could be similar to an apple would be quite difficult for him to understand because it’s an abstract concept”. She also said in response to a question from the trial Crown that a plan to go to university with the goal of getting money to live in a mansion involves more abstract thinking. No questions were asked about whether the complainant’s challenges in abstract thinking would make him less suggestible or less capable of lying.

D.M.’s Defence Evidence

24D.M. presented defence evidence. He himself testified and denied each of the allegations.

25With respect to the alleged D.M. house incident, he said that he went with the complainant to retrieve a snowplough from his house in the fall of 2013, so that his uncle could assist him with mounting it on D.M.’s four-wheeler. He was able to identify the year when this occurred because he did not have his own pickup truck until the spring of 2014 and had to borrow his uncle’s truck to transport the snowplough. He said that the complainant did not come into his house on that occasion, and that the complainant has never been in his bedroom.

26D.M. testified that the road on S.R.’s property where the complainant alleged that the truck and field incident occurred is impassable for trucks, and that he never went to S.R.’s field with the complainant.

27He denied the hunt camp incident as well, testifying that he never went to the hunt camp with the complainant to get cigars.

28D.M. also gave some evidence about the March 26, 2016 phone calls with the complainant’s father. He testified that when he was confronted with the allegation that he had sexually assaulted the complainant, he denied it and said, “I don’t know where this is coming from”. After that call ended unexpectedly, he re‑established contact with the complainant’s father and during that second call he could hear C.M. and the complainant’s father threatening to kill him. S.R. did not threaten him but told him that he was not welcome on his property anymore. D.M. said he again denied that he did anything wrong.

29D.M. testified that he spoke to the complainant’s parents with his uncle the following day. After the conversation, D.M., his uncle, and his cousin’s then boyfriend J.R., who happened to be S.R.’s son, removed some of their belongings from the hunt camp because they were “told to stay off the property.” D.M. said they took their mattresses along with a fourth mattress belonging to a friend of theirs, as well as their blankets and pillows, and pots and pans. He denied that he had removed anything to hide evidence of a crime.

30Because D.M. had also been told to stay off S.R.’s property, his uncle, J.R. and his cousin removed other family belongings from S.R.’s barn, including a wood splitter, a lawn mower and J.R.’s four-wheeler frame that were being stored there. D.M. did not go with them because he had been told not to go on the property.

31When D.M. was cross-examined, the trial Crown challenged D.M.’s testimony that he was told to stay off S.R.’s property as well as his evidence that property had been removed from S.R.’s barn at the same time that property was removed from the hunt camp, but D.M. affirmed his testimony. The trial Crown suggested that when he removed the mattresses from the hunt camp, D.M. could have taken the furniture as well and would have done so if he was attempting to remove his property from the hunt camp. D.M. said there was no room left in his truck, and he could not go back because he “got confronted” before he could do so. Exactly what D.M. meant by being confronted was not explored.

32The trial Crown then cross-examined D.M. relating to why the complainant might make up a false story. That line of questioning is reproduced below at paragraph 67 of these reasons (the “false story cross-examination”).

33The Crown also cross-examined D.M. about his reaction to the phone calls in which he was first confronted with the allegation.

J.R.’s Defence Evidence

34J.R. then testified for the defence. He gave testimony consistent with D.M.’s account of the removal of the property and said that the property they removed from the hunt camp was taken to D.M.’s aunt and uncle’s property. Other evidence presented during the trial confirmed that D.M.’s aunt and uncle’s property was proximate to the complainant’s home.

D.M.’s Aunt’s Defence Evidence

35D.M.’s aunt testified that she liked cigars and knew that Cuban cigars were kept at the hunt camp. She said she never sent D.M. to get her cigars, but in November or December of 2015, she sent the complainant to do so, using his mother’s golf cart.

The Details of the Denial

36The jury was then provided with an “agreed statement of facts” that set out the details of the March 26, 2016 phone confrontation between the complainant’s father and D.M. In the agreed statement of facts, the jury was provided with excerpts from the complainant’s father’s statement to the police in which the complainant’s father confirmed that when he confronted D.M., D.M. denied everything. Extracts from the complainant’s father’s preliminary inquiry evidence were included, in which he testified that “[D.M.] said he couldn’t believe the allegations that I told him”, and that D.M. said to the complainant’s father, “I wouldn’t have done that.” Also included was the preliminary inquiry testimony of S.R., where he described overhearing D.M. saying in response to the allegation, “You wouldn’t think I would do something like that.”

THE CROWN’S CLOSING SUBMISSIONS

37In closing submissions, the trial Crown invited the jury to rely upon Dr. Temple’s testimony to support the complainant’s credibility. After reminding the jury that Dr. Temple testified that the complainant would have no difficulty with concrete thoughts but would have more difficulty with abstract thoughts, the trial Crown relied upon this testimony to challenge the defence theory that C.M. influenced the complainant to make a false allegation against D.M.:

It’s not a matter of whether [the complainant], according to [C.M.], was a good friend of his and a good buddy that he went out with. To [the complainant], [C.M.] was a friend. And so because the allegations were bugging [the complainant], the Crown respectfully submits that this is an abstract thought, but it was the cooking the sausages, it was making the connection to wiener to describe [D.M.’s] penis that triggered [the complainant] with what seemed like a sudden disclosure to [C.M.] This inference, the Crown respectfully submits, is far more likely on the evidence than the defence allegation that [C.M.] fed [the complainant] the allegations.

The Crown’s respectful submission is that if [C.M.] had just fed him lies and told him to tell the police lies, that would be an abstract concept. [The complainant] would have difficulty with that and I would respectfully submit that [the complainant] wouldn’t be as upset at [D.M.] as he was in that video. He wouldn’t be upset because [D.M.] would have done – wouldn’t have done anything to him.

38The trial Crown again relied upon Dr. Temple’s evidence to address the defence theory that the complainant may have made up the allegations in order to have his dad back in the residence:

Second of all, in addressing that theory I would like to ask you to recall the evidence of Dr. Valerie Temple. Dr. Temple testified that [the complainant] would have difficulty with abstract concepts and she gave as an example the difference between asking [the complainant] about a banana and trying to characterize that as a fruit. You will also recall the hypothetical about wanting to live in a mansion. If you want X to happen, you have to do Y and Z first. Dr. Temple testified this type of reasoning would be referred to as an abstract concept and not a concrete concept.

The Crown’s respectful submission is that [the complainant] would have had significant difficulty in engaging this type of reasoning, “If I make up a false allegation of sexual assault against [D.M.], then I may be able to get charges, then my dad may be coming home more.”

39The trial Crown also used Dr. Temple’s evidence more generally in support of the allegations:

It’s the Crown’s respectful submission that [the complainant] being sexually assaulted by [D.M.] is an abstract concept or is a concrete concept and not an abstract one. These are events that happened to him. He wasn’t told about them and asked to recite them. They happened to him.

The Crown respectfully submits that when [the complainant] spoke about the concrete concepts, the actions, the thing that happened to him, he was credible.

40The trial Crown also invited the jury to draw an “after-the-fact conduct inference”. Specifically, the Crown suggested that D.M. removed the mattresses from the hunt camp because he wanted to “get rid of the mattresses to avoid the police seizing them and finding any potential evidence”. The trial Crown urged the jury that “it’s a reasonable inference if you find there’s no other innocent explanation for that, was to avoid them being seized by the police because he knew there could have been evidence on that, given that [the complainant] testified that the sexual assault happened on the mattress.”

THE CHARGE TO THE JURY

41This appeal raises issues with the sufficiency of the jury charge. The material passages from the charge are best described in the discussion of each issue.

THE ISSUES

42D.M. raises several grounds of appeal relating to his convictions. I will address those grounds of appeal as follows: [2]

A. Did the trial judge err by not intervening and correcting the Crown’s use of the expert evidence on the issue of credibility? B. Did the trial judge err by failing to adequately direct the jury relating to the false story cross-examination? C. Did the trial judge err by misdirecting the jury on the application of the rule in R. v. W.(D.), [1991] 1 S.C.R. 742? D. Did the trial judge err in the jury instruction on after-the-fact conduct relating to the removal of the mattresses? E. Did the trial judge err in failing to direct the jury that when evaluating credibility and reliability it should consider the entirety of a witness’s evidence? F. Did the trial judge err in failing to give a limiting instruction relating to prior consistent statements?

43For the reasons that follow, I would dismiss grounds of appeal E and F, but I would accept grounds of appeal A-D, set aside the convictions on Counts 1 and 2 and the conditional stay on Count 3, and I would order a new trial.

ANALYSIS

A. DID the trial judge err by not iNTERVENING AND cORRECTING the Crown’s use of the Expert Evidence on the Issue of CredibIlity?

44The trial Crown explained that she was seeking to have Dr. Temple qualified as an expert “in the area of clinical psychology, particularly with respect to the testing and assessment of persons with developmental disabilities”. The trial Crown particularized that description of the scope of the expert evidence it was seeking by saying: “I’m staying away from the credibility, I’m not asking questions about, you know, is he able to lie? Is he able to tell the truth? I, I think that would be an area that my friend would object to and I’m not asking her about that.” After hearing these representations, defence counsel did not challenge Dr. Temple’s expertise or the admission of her expert evidence.

45As telegraphed, the trial Crown stayed away from credibility when questioning Dr. Temple. Dr. Temple was never asked, for example, what impact, if any, the complainant’s relative comfort with concrete as opposed to abstract concepts would have on whether he was prone to suggestion or influence from others in recounting what happened. Nor did the trial Crown explore with Dr. Temple whether the complainant would be capable of concocting a lie to receive a benefit. Nor did the trial Crown ask Dr. Temple whether the complainant’s ability to understand concrete things, or his limitation with abstract concepts, enhanced his credibility when testifying about what happened to him. Yet during closing submissions the trial Crown used Dr. Temple’s evidence both to neutralize challenges to the complainant’s credibility and to bolster his evidence based on each of these theories. Simply put, the trial Crown signalled that it was staying away from using Dr. Temple on the issue of credibility but did not do so. In my view, this was seriously problematic.

46First, by not disclosing that Dr. Temple’s evidence would be offered to the jury on the issue of credibility, the trial Crown prevented a proper inquiry from being made into whether Dr. Temple was qualified to offer expert evidence supporting the credibility inferences the Crown asked the jury to draw from her testimony. It is not at all clear that, had Dr. Temple been asked to express an opinion on credibility issues, she would have claimed the expertise to do so, or that she would have judged the cognitive tests she performed to be a suitable basis for drawing the credibility inferences the trial Crown sought to draw. Even if Dr. Temple would have claimed the expertise and readiness to offer evidence about the complainant’s credibility, it is not at all clear that after a voir dire she would have been found qualified to do so.

47Second, even if Dr. Temple had been properly qualified to offer testimony endorsing the credibility inferences the trial Crown sought to draw, it is not at all clear that she would have been permitted to do so. There are significant limits on the contribution that expert witnesses can make to credibility assessments, including the rule against oath helping, which prohibits the reception of expert opinion about the truthfulness of a witness: R. v. J.H., 2020 ONCA 165, at para. 94; R. v. Llorenz (2000), 132 O.A.C. 201 (Ont. C.A.), at para. 27. Although I need not decide the point for the purposes of this appeal, it is arguable that this rule would have been violated had Dr. Temple attempted in her testimony to offer some of the inferences that the trial Crown sought to draw from her evidence. Even if it would not have violated the rule against oath helping for Dr. Temple to have provided testimony for the purpose of supporting the inferences the Crown invited the jury to draw, when an expert witness offers technically admissible evidence that touches on issues of credibility, the trial judge, as a gatekeeper, must still weigh the “probative value [of the evidence] in relation to its legitimate purpose, against its prejudicial effect” and exclude that evidence if the risk of prejudice is too great: Llorenz, at para. 31. By not being forthcoming about the use it intended to make of Dr. Temple’s evidence, the trial Crown may well have lulled D.M.’s trial counsel into conceding the admission of evidence that could possibly have been successfully contested, had its intended use been made known.

48Third, even leaving aside questions of qualifications and admissibility, by not disclosing in advance that Dr. Temple’s evidence would be offered to the jury on the issue of credibility, the trial Crown deprived D.M.’s trial counsel of notice that it should cross-examine Dr. Temple on the validity or weight of the inferences the trial Crown sought to have the jury draw from Dr. Temple’s evidence. It also deprived the jury of the context required to assess the validity or weight to give those inferences. For example, the trial Crown did not even seek Dr. Temple’s opinion on whether the things that the trial Crown suggested to the jury to be abstract or concrete fit within the concepts Dr. Temple was describing.

49There is a related problem arising from the trial judge’s response. In my view, once the trial Crown began to rely in its submissions on Dr. Temple’s expert testimony as if Dr. Temple had been qualified to offer evidence about the complainant’s credibility, the trial judge was required to intervene, but he failed to do so.

50In J.H., Watt J.A. described the general duty of trial judges to intervene to ensure compliance with the law of evidence where the contravention of those rules may prejudice the accused: at para. 101. It is important to remember in this regard that the rules of evidence control not only the reception of evidence, but also the use to which that evidence can be put. Without doubt, the obligation to intervene to ensure compliance with the law of evidence therefore extends to situations where a party seeks to put expert evidence to an unauthorized and therefore impermissible use after it has been admitted. In R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, Doherty J.A. stressed that “[a] cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential”: at para. 62. The reason why a cautious delineation of the scope of the proposed evidence is essential “if the evidence is admitted” is so that trial judges can discharge their obligations to confine the expert testimony to qualified topics during the trial. The scope of expert evidence must be controlled in this way because of the weight that “expertise” tends to carry. Experts necessarily testify based on accumulated experience or training on matters that lay persons cannot understand without assistance, creating the potential that triers of fact may be inclined to defer to experts. For the Crown to co-opt the gravitas of an expert to support submissions on matters outside the scope of the expert’s established qualifications is therefore unfair and dangerous. In my view, the trial judge erred by failing to intervene.

51Finally, once the trial Crown did offer Dr. Temple’s expert evidence for this unauthorized purpose, the trial judge was obliged to give the jury a limiting instruction. Instead, the trial judge lent legitimacy to the trial Crown’s arguments by reminding the jury of Dr. Temple’s evidence that the complainant “is poor with abstract concepts” without qualifying the use to which this evidence could be put. When directing jurors on “how much or how little [they] will believe and rely upon the evidence of [the complainant]”, the trial judge also instructed the jury to “[t]ake into account the evidence of Dr. Temple regarding [the complainant’s] intellectual functioning.” Given that Dr. Temple had not been qualified to offer expert evidence relevant to credibility, the trial judge should have instead told the jury not to accept the trial Crown’s invitation to use Dr. Temple’s evidence to assess the honesty of the complainant’s evidence.

52The Crown quite rightly points out that D.M.’s trial counsel did not object to the use to which Dr. Temple’s evidence was put, and no objection was taken to the jury charge relating to Dr. Temple’s testimony. However, I am not persuaded that D.M. should effectively be estopped from raising this issue on appeal because of the lack of timely objection by D.M.’s trial counsel. As Miller J.A. recently affirmed in R. v. B.G., 2022 ONCA 92, 410 C.C.C. (3d) 128, at para. 34:

[A] failure to object is not determinative and the responsibility for the jury charge ultimately falls on the trial judge: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 47. This court has repeatedly held that trial judges are required to respond through specific corrective instructions where Crown improprieties inject a particular risk that the jury will engage in an impermissible pattern of reasoning: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 52.

53In this case, there is a particular risk that the jury would engage in an impermissible pattern of reasoning at the invitation of the Crown. Moreover, there is no air of reality to the possibility that D.M.’s trial counsel made a tactical decision to permit the trial Crown to attempt to use the expert evidence to buttress the complainant’s credibility, and this prejudicial error touches on a central issue in the case.

54I also reject the Crown’s submission that what occurred was permissible because the trial Crown’s submissions were responsive to the defence position.

55First, the trial Crown did not confine its attempted use of the expert evidence to rebutting defence theories about why the complainant may be presenting false evidence. As indicated in paragraph 39 above, the trial Crown sought to use expert evidence about the complainant’s ability to understand concrete matters to buttress the general credibility of the complainant’s allegations.

56Second, and more importantly, although the Crown is entitled to respond to a defence position, it must do so with admissible evidence properly available for this purpose. Dr. Temple’s evidence was not available for this purpose because she was never qualified to offer testimony relevant to credibility, and the trial Crown had effectively undertaken not to use her expert evidence for this purpose.

57In J.H., Watt J.A. cautioned that where the Crown has not adhered to the rules of evidence, appellate success does not inevitably follow: “On appellate review, the question is whether, in the context of the entire trial, the evidence or other conduct (including any response or lack of response by the trial judge) caused a substantial wrong or miscarriage of justice”: at para. 101. In my view, the trial Crown’s inappropriate use of Dr. Temple’s evidence on the issue of credibility, coupled with the trial judge’s failure to intercede as well as the direction he gave, caused a substantial wrong or miscarriage of justice in a case that ultimately turned on the complainant’s credibility. This error alone requires that the convictions on Counts 1 and 2 and the conditional stay on Count 3 be set aside.

B. Did the trial judge err by misdirecting the jury on the application of the rule in W.(D.)?

58In my view, the trial judge misdirected the jury on the application of the rule in W.(D.). The rule in W.(D.) requires a jury direction that will ensure that “jurors properly apply the criminal standard of proof when making credibility and reliability determinations relating to exculpatory evidence on vital issues”: R. v. Hoffman, 2021 ONCA 781, at para. 36; R. v. Boucher, 2022 ONCA 40, 410 C.C.C. (3d) 150, at paras. 65-69. This rule is not confined to the exculpatory testimony of the accused. It applies to any exculpatory evidence on vital issues that arises in the case and that turns on the credibility or reliability of a witness, whether that witness is the accused, or another defence witness, or even a Crown witness: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 105, 114; R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at para. 45.

59In this case, two of the witnesses provided exculpatory testimony, being testimony that, if credited by the jury, could create a reasonable doubt about D.M.’s guilt on the charges he faced.

60First, S.R., a Crown witness, testified that the road the complainant identified as the location where D.M. parked his truck during the truck and field incident was not accessible by normal vehicles: “Four-wheelers really only because as the road’s being dug away, normal vehicles cannot go down in the hole.” Based on that evidence, D.M. could not have taken the complainant in his truck where the complainant claimed he had been taken and sexually assaulted.

61Second, D.M.’s aunt testified for the defence that she never sent D.M. to get cigars at the hunt camp, but that when she sent the complainant to get cigars at the hunt camp, he went alone or with someone other than D.M. If credited, this evidence would undercut the complainant’s narrative of the hunt camp incident.

62Since the testimony provided by S.R. and D.M.’s aunt that I have just described raises issues of reliability and credibility and could leave jurors with a reasonable doubt relating to incident 2 (the truck and field incident) and incident 3 (the hunt camp incident) respectively, it is evidence on vital issues to which the rule in W.(D.) applies. However, when the trial judge directed the jury on the application of the rule in W.(D.), he spoke of it applying solely to D.M.’s testimony that he never engaged in sexual activity with the complainant:

First, if you believe [D.M.’s] evidence that he did not, at any time, engage in any sexual activity with [the complainant] you must find him not guilty.

Second, even if you do not believe, or are not sure whether you believe, [D.M.’s] evidence that he never engaged in any sexual activity with [the complainant], if that evidence leaves you with a reasonable doubt about whether he is guilty of the offences charged, then again, you must find him not guilty.

Finally, even if [D.M.’s] evidence does not raise a reasonable doubt about his guilt, you may convict him of an offence only if the rest of the evidence that you do accept proves his guilt of that offence beyond a reasonable doubt. [Emphasis added.]

63I am persuaded that by describing the operation of the rule in W.(D.) as applying solely to D.M.’s denials of sexual activity, the trial judge erred. I do not accept the Crown’s submission that the jury would have had a functional understanding of how to apply the principles of reasonable doubt in evaluating the credibility and reliability of the exculpatory evidence from S.R. and D.M.’s aunt, notwithstanding this error. The rule in W.(D.) developed because general directions on the principles of reasonable doubt, such as those the Crown is relying upon in this appeal, are not always adequate to instruct jurors on the more subtle question of how to apply reasonable doubt to determinations of credibility and reliability. The proposition that evidence that is not believed can raise a reasonable doubt is not intuitive, nor is the notion that a trial is not a credibility contest. Although there are cases where more general directions about reasonable doubt in a jury charge will suffice, this is not one of them, as this is not a case of a simple non-direction. By focusing the W.(D.) direction solely on D.M.’s denials, the trial judge actively misdirected the jury, creating the material risk that the jury would have misunderstood the rule in W.(D.) to have limited application that would not extend to the exculpatory testimony of S.R. and D.M.’s aunt.

64Nor do I take solace in the fact that the trial judge elsewhere in his charge recounted the exculpatory evidence of S.R. and D.M.’s aunt. The recitation of that evidence reminded the jury of what the evidence was but provided no guidance on how the credibility and reliability of that evidence is to be evaluated to determine whether it gives rise to a reasonable doubt.

65Once again, D.M.’s trial counsel raised no objection to this aspect of the jury charge. The failure to do so cannot be taken as a tactical choice, as D.M. had nothing to gain by the misdirection, and everything to lose. Nor, given the importance of this issue, can D.M.’s trial counsel’s failure to object be taken to be a cognizant appreciation that the misdirection was unimportant. This was, at bottom, a credibility case in which each side strived in turn to find confirmation or contradiction in other evidence. This misdirection cannot, in context, be treated as not serious enough to warrant objection and correction.

66I would allow this ground of appeal.

C. Did the trial judge err by failing to adequately dirEct the jury relating to the false Story Cross-examination?

67The Crown cross-examined D.M. as follows:

Q. And at the time that [the complainant] talked to [C.M.] about the allegations in March 2016, there was no other incident that had happened between you and [the complainant] that you allege made [the complainant] annoyed at you?

A. Not that I can recall.

Q. I’m going to suggest to you, there was nothing, nothing had happened between you and [the complainant] to make [the complainant] angry with you?

A. Not that I can remember. No.

Q. Well you’ve had a long time to think about this. If [the complainant] was annoyed at you that day and that’s why he talked to [C.M.], that’s something you think you would remember?

A. Yes.

Q. Right?

A. Yes.

Q. So I’m going to put it to you again, there was nothing other than obviously the allegations that came before the Court, but there was nothing else that had happened between you and [the complainant] to make [the complainant] want to make up a false story against you, correct?

A. No.

68The trial Crown should not have cross-examined D.M. in this way. “[I]t is improper to call upon an accused to comment on the credibility of his accusers”: R. v. Rose (2001), 53 O.R. (3d) 417 (C.A.), at p. 432. This includes questions that ask the accused for an explanation for a complainant’s allegations: R. v. G.H., 2020 ONCA 1, at para. 28. I see nothing in the recent decision of the Supreme Court of Canada in R. v. Gerrard, 2022 SCC 13 that in any way suggests that this rule has changed.

69There are two reasons for this rule. First, such questions may call for the accused to speculate about the state of mind of an accusing witness. Second, and more importantly, “[q]uestions of this nature suggest that there is some onus on an accused person to provide a motive for the Crown witness’ testimony and, as such, they undermine the presumption of innocence”: Rose, at pp. 432-3. As Simmons J.A. explained in R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, “such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a ‘reasoned or persuasive’ response”: at para. 16.

70The Crown argues that the questioning in this case was not improper because the trial Crown was exploring the nature of the relationship between the appellant and the complainant, which is appropriate: R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 40. This questioning clearly went beyond exploring the nature of the relationship. Taken together, the questions were not about the relationship per se, but about specific events that would cause the complainant to become annoyed or angry enough with the appellant to bear false witness against him. It is obvious that the Crown was challenging D.M. to identify reasons that would give the complainant motive to mislead.

71In the second last question on this subject, the trial Crown was permitted to secure D.M.’s agreement that he had a long time to think about this. This was a direct invitation to D.M. to speculate about reasons why the complainant might be annoyed or angry enough with him to lie. By effectively suggesting to D.M. in this way that he would have come up with an event that would have annoyed or angered the complainant, if there was one, the Crown was courting the risk that the jury would draw an adverse inference against D.M. for not providing a reasoned and persuasive response.

72Finally, the last question the trial Crown asked D.M. on this subject was explicit, and unequivocally about whether D.M. knew of anything that happened that would make the complainant “want to make up a false story against [the appellant]”. Taken as a whole, this line of cross-examination risked subtly shifting the burden to the accused to provide a motive for the complainant to testify falsely. It was improper and prejudicial.

73The Crown raises two contrary arguments. First, it once again correctly notes that D.M.’s trial counsel did not object. In my view, the absence of objection contributes little. Given that there is no possible benefit to the defence in this line of questioning, there is no realistic prospect that the failure to object was tactical. Nor would it be fair to assume that D.M.’s trial counsel was signalling through his lack of objection that the improper questioning was not problematic. This transgression of proper cross-examination by the Crown jeopardized the protection of the burden of proof. I am persuaded that, like the Crown who went too far, and the trial judge who failed to intercede and offer a mid-trial direction, D.M.’s counsel simply missed an important issue that should have been attended to.

74Second, the Crown on appeal relies upon the trial judge’s charge to insulate the trial Crown’s error. Specifically, the Crown relies on the fact that in two separate sections of the jury charge the trial judge directed the jury that the defence does not have to prove why the complainant “might fabricate criminal allegations against him” or “prove why [the complainant] would present false evidence” (the “no onus directions”).

75I agree that the no onus directions reduce the risk of prejudice from the improper questioning, but in my view, a material risk nonetheless remained. The danger with challenging accused persons during trial with whether they can explain why a complainant would testify falsely is that it operates subtly to shift the burden of proof. There is a limit to the confidence that can be placed in the prospect that jurors would understand the two general no onus directions to mean that they should take no relevance from the inability of the accused to provide an answer to a line of Crown questioning that was openly permitted during the trial. Although a mid-trial direction at the time the trial Crown engaged in this improper questioning would have been preferable, at the very least the trial judge should have linked the no onus directions he gave during the jury charge to the Crown’s improper cross-examination, but he did not do so.

76Indeed, on each occasion when the trial judge gave the no onus directions, he linked them specifically and only to the defence theory that C.M. had induced the complainant to make false allegations against D.M. In these circumstances, there is little real prospect that jurors would have understood from the no onus directions that the improper cross-examination that the trial judge permitted was in fact impermissible and should not be relied upon.

77I therefore have serious reservations about whether the jury was left with a functional understanding of how to deal with the improper cross-examination. I need not decide whether, standing alone, the trial judge’s handling of this improper cross-examination would require a new trial because of the related errors that I have just identified. Even had I not been persuaded that the uncorrected misuse by the trial Crown of Dr. Temple’s testimony as evidence relevant to the complainant’s credibility requires, on its own, that the appeal be allowed, I would find that together, (1) the misuse of Dr. Temple’s evidence, (2) the material misdirection in the W.(D.) jury direction, and (3) the improper questioning by the trial Crown challenging D.M. to identify motives for the complainant to testify falsely, impeded the jury from undertaking a proper credibility evaluation of the complainant’s evidence thereby undermining the fairness of the trial.

D. Did the trial judge err in the jury instruction on after‑the-fact conduct relating to the REmoval of the mattresses?

78The trial judge directed the jury relating to the Crown’s submission that they should draw an after-the-fact conduct inference from D.M.’s removal of mattresses from the hunt camp. The trial judge fairly summarized the relevant evidence and then said:

If you do not or cannot find that what [D.M.] did, in removing mattresses from the hunt camp, was related to the commission of the offences charged, you must not use this evidence in deciding or in helping you decide that [D.M.] committed the offences charged (emphasis in the original).

On the other hand, if you find that the removal of the mattresses was related to the commission of the offences charged, not to something else, you may consider this evidence, together with all the other evidence, in reaching your verdicts.

79D.M. raises two issues on appeal with this jury direction.

80First, he submits that an inference that the removal of the mattresses was inculpatory after-the-fact conduct would be speculative and unreasonable. Instead of directing the jury on how to determine whether to draw an after-the-fact conduct inference from the removal of the mattresses, the trial judge should have instructed the jury not to accept the trial Crown’s invitation to draw an inculpatory after-the-fact conduct inference from the removal of the mattresses (the “unreasonable inference argument”).

81Second, he submits that even if the removal of the mattresses was evidence of inculpatory after-the-fact conduct, that evidence would be relevant solely to the hunt camp incident, but the trial judge’s charge erroneously suggested it would be evidence that D.M. committed all of the offences charged (the “improper use argument”).

The Unreasonable Inference Argument

82Subject to the trial judge’s discretion to exclude Crown evidence if its probative value is exceeded by its prejudicial effect, after-the-fact conduct evidence is admissible if it is relevant and does not otherwise offend any exclusionary rules: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on this point). Relevance is not a high standard. To be relevant, the after-the-fact conduct evidence must merely, as a matter of logic and human experience, make the inculpatory proposition for which it is advanced more likely than that proposition would be in the absence of that evidence: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36 (“White (2011)”). Put otherwise, all that is required is that the inference the Crown seeks to be drawn is “reasonable according to the measuring stick of human experience”: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77.

83To be clear, this relevance inquiry does not require a minimum probative value: Calnen, at para. 108. Nor does after-the-fact conduct become irrelevant and inadmissible because it may also support a competing inference consistent with innocence. Instead, “[i]t is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct”: Calnen, at para. 112, citing Smith, at para. 78. However, if a trial judge concludes that the probative value of after-the-fact conduct evidence is outweighed by the risk of prejudice it presents – including the risk that the jury will leap too quickly to the inference consistent with guilt – the trial judge may exercise discretion to exclude the evidence: R. v. White, [1998] 2 S.C.R. 72, at para. 33; White (2011), at paras. 50-53; R. v. Keror, 2017 ABCA 273, 354 C.C.C. (3d) 1, at para. 61.

84D.M. does not take issue with the initial admission of the evidence that he removed mattresses from the hunt camp. He argues instead that when this evidence is viewed in the context of all the evidence that was presented in the entire case, the inference that D.M. removed the mattresses to hide his guilt proved not to be reasonable by the measuring stick of human experience, such that the trial judge was obliged to take that evidence away from the jury. I do agree with D.M. that if the evidence of the removal of the mattresses had ultimately proved to have been inadmissible when viewed in the context of all of the evidence, the trial judge would have been obliged to give a limiting instruction that removed that evidence from the jury: White (2011), at para. 29. However, given that I would order a new trial, I will refrain from expressing my views on whether the after-the-fact conduct evidence met the standards of admissibility or whether, in all of the circumstances, the trial judge should have directed the jury not to draw the after-the-fact conduct inference sought by the Crown. I will, however, comment on the improper use argument.

The Improper Use Argument

85As recognized by Hoy A.C.J.O. in R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, “In some instances, […] evidence of post-offence conduct can logically support an inference of guilt with respect to one offence rather than another”: at para. 81. Even if the after-the-fact conduct inference sought by the Crown was properly available, this would be such a case. A jury could use the removal of the mattresses as culpable after-the-fact conduct evidence relating only to the hunt camp incident, since at most, logically D.M.’s act of removing the mattress could show consciousness of guilt only relating to that incident.

86In Chambers, Hoy A.C.J.O. went on to explain that where evidence logically supports an inference with respect to one offence but not another, “the judge must give a limiting instruction as to the appropriate and inappropriate inferences to be drawn from the evidence”: at para. 82; see also R. v. Wood, 2022 ONCA 87, at para. 120.

87D.M. argues that the trial judge should therefore have directed jurors to consider this evidence, if at all, only in determining whether D.M engaged in sexual conduct with the complainant during the hunt camp incident. Instead, he erroneously directed the jurors: “if you find that the removal of the mattresses was related to the commission of the offences charged, and not to something else, you may consider this evidence, together with all the other evidence, in reaching your verdicts” (emphasis added).

88I agree with D.M. that this was an error by the trial judge. Not only did he fail to give an appropriate limiting direction to consider the after-the-fact conduct evidence solely in relation to the hunt camp incident, but he misdirected the jury by telling them that they could use this evidence in reaching all of their verdicts.

89In Chambers, speaking about non-directions relating to the proper and improper uses of culpable after-the-fact inferences, Hoy A.C.J.O. affirmed that “[a] trial judge’s failure to instruct a jury on the limited use of or inferences available from the post-offence conduct evidence may constitute reversible error”: at para. 82. I am persuaded that the trial judge’s error in this case is a reversible error.

90I do not agree with the Crown that the jury would have understood from the charge as a whole, despite the trial judge’s misdirection, that it could not use the removal of the mattresses in the hunt camp incident as culpable evidence relating to the D.M. house incident and the truck and field incident. The Crown relies primarily on the fact that the trial judge identified for the jurors the charges to which the hunt camp incident applied, namely Counts 2 and 3, but not Count 1. In my view, a direction to jurors about what charges can be proved by establishing the hunt camp incident beyond a reasonable doubt, tells jurors nothing about what use they can make of evidence relating to the hunt camp incident when deciding whether other alleged incidents occurred.

91Nor do I take solace in the Crown’s claim that it would have been obvious to jurors that the after-the-fact conduct related only to the hunt camp incident. The fact that jurors would have understood the allegation to be that D.M. removed incriminating evidence relating to the hunt camp incident, does not mean that they would have appreciated that a finding that he sought to hide his guilt on that charge should not be used in determining his guilt on other charges. Indeed, even if jurors might instinctively believe that the reach of the culpable after-the-fact evidence should be confined only to the specific act to which it relates, it cannot be forgotten that in this case the trial judge explicitly invited jurors to consider this evidence on all of the offences charged.

92Nor do I accept that D.M.’s trial counsel’s failure to object should bar this ground of appeal. Clearly, the decision not to object was not tactical, and this error is too serious in nature to interpret the failure to object as an indication that the error was not worth addressing with an objection.

93I would therefore allow this ground of appeal, but only with respect to Count 1. In my view, this is the only count on which a misuse of the after-the-fact conduct inference could prejudice D.M. I will explain.

94I start with the premise that unless the jury used the after-the-fact conduct inference against D.M. to find him guilty of the hunt camp incident, there is no realistic prospect that the jury would have done so relating to the D.M. house incident and the truck and field incident. It follows that the misuse by the jury of the after-the-fact conduct inference would prejudice D.M. only if that misuse contributed to his conviction on counts that he could have been acquitted of even if he was found to have committed the sexual misconduct alleged during the hunt camp incident. This excludes Counts 2 and 3, which each include the hunt camp incident allegation. Simply put, if a jury found beyond a reasonable doubt that D.M. sexually abused the complainant at the hunt camp, he would be convicted of Counts 2 and 3 whether or not jurors were persuaded beyond a reasonable doubt that he committed sexual abuse related to the D.M. house incident or the truck and field incident. As a result, improper reasoning leading to a finding that he committed either or both of those incidents as well would have no bearing on the verdicts rendered against him on Counts 2 and 3.

95This was not so with Count 1, which did not embrace the hunt camp incident. It remains possible, given the misdirection relating to the use of the after-the-fact conduct evidence, that the jury may have relied upon the removal of the mattresses by D.M. to bolster their findings on the D.M. house incident and/or the truck and field incident, enabling a finding of guilt on Count 1 that may not otherwise have occurred.

96I would allow this ground of appeal with respect to Count 1.

E. Did the trial judge err in failing to direct the jury that when evaluating credibility and reliability it should consider the entirety of a witness’s evidence?

97D.M. argues that the trial judge erred by failing to direct the jury on how to relate an adverse credibility finding in respect of one incident when considering other alleged incidents. He points out correctly that based on the decision in R. v. P.E.C., 2005 SCC 19, [2005] 1 S.C.R. 290, a trier of fact is entitled to consider the testimony a witness gave on one count, when considering the credibility of the evidence that witness gave on other counts: at para. 1. D.M. argues that the trial judge was obliged to tell the jury this. His concern is that jurors may have found the complainant to be incredible relating to one of the charged incidents but have failed to consider this incredibility finding in determining the credibility of the complainant relating to other charged incidents.

98I would not allow this ground of appeal. The decision in R. v. W.D.D., 2008 ONCA 755, 238 C.C.C. (3d) 44, relied upon by D.M., is distinguishable. In that case, there was a reasonable prospect that in a jury question the jury was effectively asking whether it could consider credibility across counts in the fashion I have just described. The trial judge did not answer that question but told the jury only that it could not use evidence across counts. This potentially misled the jury into incorrectly concluding that they could not use testimony a witness gave on one count when making a credibility determination relating to the testimony that witness gave on other counts. This case is distinguishable. There is no indication that this jury may have been confused about the use of a witness’s testimony across counts in evaluating their overall credibility, and no indication that anything the trial judge said may have misled the jury in this regard. Indeed, when telling jurors that it was up to them to decide whether to believe the testimony of a witness, the trial judge said, “you should consider carefully, and with an open mind, all of the evidence presented during the trial”. In the circumstances, I would deny this ground of appeal.

F. Did the trial judge err in failing to give a limiting instruction relating to prior consistent statements?

99The jury learned repeatedly throughout the trial that the complainant had alleged prior to the trial, just as he was doing in his testimony, that D.M. sexually molested him. Specifically, the jury learned that on March 26, 2016, the complainant disclosed the alleged sexual abuse to C.M., and then to his father, leading to the confrontation between his father and D.M. The jury also learned that the complainant told his mother as well, in addition to others, including D.M.’s aunt and uncle. And the jury learned through a videotape of a prior statement that the complainant gave to the police that was admitted into evidence at trial that the complainant had told police about the allegations prior to trial. [3]

100D.M. argues that because of the prevalence of evidence of prior consistent statements made by the complainant in this case, the trial judge should have given the jury a limiting instruction not to use the prior consistent statements to infer that the allegations made by the complainant are true because they have been repeated. He also submits that the trial judge should have directed jurors not to treat prior consistent statements from the complainant as corroborating his testimony.

101These two inferences are indeed prohibited inferences from prior consistent statements: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 41, leave to appeal refused, [2017] S.C.C.A. No. 139. It is also “true that when a prior consistent statement is admitted, regardless of the exception it falls under, the trial judge should instruct the jury on its permissible and impermissible uses”: R. v. I.W., 2022 ONCA 251, at para. 41. However, in keeping with the functional approach that is taken to jury directions, the trial judge was not obliged in this case to give the limiting instructions D.M. now calls for because there was little realistic risk that the jury would misuse the prior consistent statement evidence it received. I will explain this conclusion using relevant criteria identified by Watt J.A. in R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 80.

102First, the trial judge was assiduous in ensuring that the details of the complainant’s allegations to C.M. and his father on March 26, 2016 were not repeated in evidence. This reduced the risk that jurors would treat this prior disclosure as proof of the truth of the allegations. Similarly, the jury was not advised of the details of the prior statements made to the complainant’s mother, D.M.’s aunt and uncle, or other persons.

103Although details were provided in the police statement, the police statement operated as in-court testimony adopted by the complainant pursuant to s. 715.2 of the Criminal Code. Since the jury was entitled to treat the police statement as true testimony, it does not carry the same risk of misuse that evidence admitted for limited purposes as prior consistent statements does.

104Second, although repeated reference to prior consistent statements during a trial ordinarily increases the risk of misuse, the risk that repetition poses is lessened where, as in this case, the details are not repeated.

105Third, D.M. played a primary role in the introduction of this evidence. Although the Crown disclosed as part of the narrative the fact that on March 26, 2016, a prior complaint had been made to C.M. and the complainant’s father, it was D.M.’s trial counsel who secured the details of that complaint, and then repeatedly presented evidence of D.M.’s denials in response as evidence of innocence, pursuant to R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, leave to appeal refused, 263 C.C.C. (3d) iv (note). D.M. also used the way the March 26, 2016 complaint arose to suggest that C.M. induced the complainant to make false allegations. It was also D.M.’s trial counsel that, without evident purpose, secured the list of other individuals to whom the complainant disclosed D.M.’s abuse.

106Moreover, the Crown never attempted to rely on the prior consistent statement evidence for improper purposes, and there were no erroneous suggestions by the trial judge relating to the use that could be made of the prior consistent statements.

107Finally, there was no request by D.M. for a limiting instruction, and no objection to the charge. Given the unlikelihood of this jury relying inappropriately on the prior consistent statements, and D.M.’s trial counsel’s unabashed readiness to speak about the prior consistent statements, this is an instance where the absence of objection may be taken as an indication that the failure to provide a limiting instruction was not a serious concern.

108I would reject this ground of appeal.

CONCLUSION

109I would find that, in all of the circumstances, the misuse by the trial Crown of the expert evidence identified in ground of appeal A caused a miscarriage of justice.

110Even if the misuse by the trial Crown of the expert evidence had not, on its own, caused a miscarriage of justice, I am satisfied that the combined effect of this error and the errors I have identified relating to grounds of appeal B and C, namely, the improper false story cross-examination and the W.(D.) error, impeded a proper evaluation by jurors of the complainant’s credibility, rendering the trial unfair.

111I am also persuaded that the trial judge erred in law by misdirecting the jury relating to the permitted use of the after-the-fact conduct evidence, as identified in ground of appeal D.

112I would therefore allow the appeal, set aside the convictions on Counts 1 and 2 as well as the conditional stay of Count 3 and order a new trial.

Released: May 31, 2022 “K.F.” “David M. Paciocco J.A.” “I agree. K. Feldman J.A.” “I agree. L.B. Roberts J.A.”

1Although once used as a measure for judging testimonial competence, this kind of inquiry is no longer required because calling on a witness to demonstrate a conceptual understanding of the difference between the truth and a lie is “abstract” and largely unhelpful in showing that a witness can communicate their evidence: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at paras. 29-39, 53. I do not intend to encourage this kind of questioning by including it in the recitation of the evidence. I do so because it has some relevance to the Crown’s submissions that D.M. was unable to understand abstract concepts, discussed below.

2Grounds of appeal A and C, as identified below, were advanced in tandem in support of the more general submission that the trial judge committed errors that failed to equip the jurors to evaluate the complainant’s credibility, thereby resulting in an unfair trial. It is convenient to address these two issues separately.

3Technically, the police statement was not admitted as a prior consistent statement but as admissible hearsay evidence, a point I will return to below.