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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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: 2018-07-03

Docket: C63255

Judges: Watt, Brown, and Huscroft JJ.A.

Between

Her Majesty the Queen

Respondent

and

M.P.

Appellant

Counsel:

Jonathan Shime, for the appellant

Andrew Hotke, for the respondent

Heard: February 20, 2018

On appeal from the conviction entered on October 21, 2016 by Justice J. Christopher Corkery of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Watt J.A.:

Introduction

[1] They met at church over two decades ago. Fellow parishioners. Members of the Worship Team.

[2] M.P. was 28. R.C. was 13.

[3] They also participated in a youth group. M.P. was the group leader. R.C. was a member.

[4] Several years later, R.C. claimed that M.P. had sexually touched her at different times over a period of about three years.

[5] M.P. denied R.C.'s allegations. Except for a single kiss.

[6] A jury found M.P. guilty of a single unparticularized count of sexual touching.

[7] M.P. appeals. He says that the trial judge made several errors in his final instructions about how jurors could use some of the evidence admitted at trial.

[8] The reasons that follow explain why I would not give effect to M.P.'s complaints and would dismiss his appeal.

The Background Facts

[9] The central issue at trial was the credibility of the two principals – M.P. and R.C. – and the reliability of their testimony about what happened between them during their relationship.

[10] R.C. gave evidence of several incidents of touching by M.P. when she was under 18. M.P. denied that these incidents took place. He claimed that he only had physical contact with R.C. when she kissed him on the lips when he was about to kiss her on the cheek.

The Principals

[11] R.C. and M.P. attended the same church. Both were members of the Worship Team. R.C. was 13. M.P. was 28. M.P. led a male Bible study group of which R.C.'s brother was a member. The meetings took place at R.C.'s home. R.C. was sometimes at home when the group met, but did not participate in their meetings. In 1997, she babysat M.P.'s children from time to time.

The Relationship Between the Principals

[12] It was common ground at trial that from 1996 until 1999, R.C. and M.P. were emotionally intimate. Where the principals differed in their testimony was whether their emotional intimacy became physical.

[13] R.C. alleged that M.P. told her that he was unhappy in his marriage. M.P. acknowledged that in the spring of 1997 he told R.C. that he was attracted to her personality. He admired her character and wished that his wife had some of R.C.'s traits. R.C. responded by telling M.P. that she was attracted to him. M.P. claimed that he specifically told R.C. that their relationship should not be physical. R.C. did not remember any such conversation.

The Specific Incidents

[14] R.C. gave evidence of several specific incidents of physical contact with M.P., who denied that any had occurred.[1]

The Washington Bus Trip

[15] The Youth Group went on a bus trip to Washington D.C. in the summer of 1997. M.P. was the male chaperone on the trip. His responsibility was to look after the male students.

[16] R.C. testified that when she was eating a popsicle, M.P. said that he was having thoughts he shouldn't have. Later, M.P. sat beside R.C. on the bus. He touched R.C.'s thigh and vagina under her dress, but over her shorts.

[17] M.P. denied these incidents.

The Kiss

[18] Shortly after the Washington trip, M.P. went to R.C.'s home to pick up her brother and take him to the gym. R.C. came out of the house. As M.P. recalled it, he went to kiss R.C. on the cheek. But R.C. turned her face and kissed him on the lips. M.P. was shocked. He stepped back. R.C. started talking about something else and sat on the front porch.

[19] R.C. did not deny that this incident had occurred. She doubted that it had taken place, however, because it would have been too public a display of their relationship. She testified that her first kiss was with M.P. before her 16th birthday but she could not recall any details about it other than that it was sensuous and tender.

The Oshawa Trip

[20] The principals gave conflicting accounts about a trip to Oshawa.

[21] M.P. recalled that towards the end of the summer of 1997, he was to take three youth members, including R.C. and her brother, to Oshawa to make up for a youth group outing they had missed. When M.P. arrived at R.C.'s house to pick up the trio, only R.C. was there. He took her to Oshawa alone.

[22] R.C. testified that the trip to Oshawa occurred in 1998. She claimed that she and M.P. planned to go on the trip alone so that they could be out together without being seen. They held hands and kissed. R.C. was 15, M.P. was 30. They spent the day together.

[23] M.P. denied that any hand holding and kissing occurred on the trip to Oshawa, whenever it had taken place. He testified that in the fall of 1997, he and R.C. discussed their relationship and decided that they should remain casual acquaintances.

The Cabin by the Lake

[24] During the winter of 1998, the Youth Group took a trip to a cabin near Lake Chandos. R.C. asked whether she could sit with M.P. on the return trip. M.P. demurred.

[25] According to R.C., she sat in the seat immediately in front of M.P. When he put his hand over her seat, R.C. licked and kissed his fingers on her own initiative. She stopped when they arrived back at the church.

[26] M.P. testified that this incident never occurred.

[27] M.P. explained that in the spring of 1998, R.C. approached him outside the church. She told him that she had been wrong and that she had never loved him. They did not speak again until the fall of that same year.

[28] In the following months, R.C. would bring young men to youth activities. She did this to show M.P. that she was no longer interested in a relationship with him.

The Salsa Tower

[29] R.C. recalled that when she was 16 or 17, M.P. drove her to the school where he worked and showed her around his classroom. After they left the school, M.P. drove down a gravel path. R.C. saw a silo, painted to resemble a salsa can. M.P. stopped the vehicle. The couple "made out". M.P. fondled R.C.'s breast.

[30] M.P. denied that this incident ever took place.

The Babysitting Incident

[31] R.C. testified about an incident that occurred when she was 16 years old. M.P. asked her to babysit at his home. He picked R.C. up and drove her to his home. Neither M.P.'s wife nor their child were present. R.C. recalled that they watched a movie – The English Patient – and "made out" on the couch. R.C. said she climaxed on M.P.'s belt buckle. M.P. said something about taking her upstairs. Later, he drove her home.

[32] M.P.'s ex-wife, C.D., recalled that on one occasion she went to a conference leaving her daughter or both children – she could not recall whether her son had been born at the time – with M.P. When she returned from the conference, M.P. told her that R.C. and one of her friends had come to the house and made her (C.D.) brownies.

[33] M.P. denied that this incident ever happened.

The Grassy Hill

[34] According to R.C., when she was around 17, she and M.P. had a conversation on a grassy hill. M.P. told her that things would be different after she turned 18. He explained that even though his wife was pregnant, this did not mean that he did not love her.

[35] When confronted in cross-examination that M.P.'s second child had been born the year before she turned 17, R.C. claimed that the conversation must have occurred on an earlier date.

[36] M.P. denied having advised R.C. of his wife's pregnancy or having had a conversation with R.C. about waiting until she turned 18.

The End of the Relationship

[37] In the spring of 1999, M.P.'s relationship with his wife was in serious trouble. M.P. was depressed. He felt that he should not have married. C.D. confirmed M.P.'s depression.

The Letter and Disclosures

[38] In June of 1999, M.P. took a brief vacation in a Provincial Park. He was alone. He wrote a letter to his wife. He explained that he had developed "more than friend feelings" for someone else. His relationship with this other person had become "slightly physical". He gave his wife the letter. She wanted to know the identity of the other person. M.P. told her that it was R.C. and that they had kissed. C.D. wanted M.P. to tell R.C. that he had disclosed their (M.P.'s and R.C.'s) relationship to her (C.D.), since the Worship Team was scheduled to perform that weekend. M.P. agreed to do so.

[39] M.P. told R.C. that C.D. was aware of their relationship.

[40] After the performance of the Worship Team, R.C. disclosed her emotional intimacy and "the kiss" to a church elder and later the same day to her parents.

The Response of the Church

[41] M.P. met with the elders of the church. He admitted his emotional attachment to R.C. and told them about "the kiss". The elders asked M.P. to withdraw from church activities for three months; to tell his employer; and to seek counselling. M.P. agreed to do so.

The Response of the School

[42] After a Board meeting, M.P. resigned his position as a teacher.

The Disclosures of R.C.

[43] In 2004, when she was 22, R.C. disclosed to a friend at university that she had been "molested by a youth group leader".

[44] In 2009, R.C. began Eye Movement Desensitization Reprocessing ("EMDR") therapy. She testified that the therapy was not specifically related to the incidents with M.P.

[45] Five years later, after she learned M.P. had become employed as a secondary school teacher in a small city elsewhere in Ontario, R.C. disclosed the details of their relationship to police. Charges were laid and a prosecution commenced.

The Grounds of Appeal

[46] The appellant advances four grounds of appeal. Each contests the adequacy of the trial judge's instructions about how the jury could use some of the evidence adduced at trial in reaching their verdict.

[47] As they were developed in oral argument, I would combine into one two of the grounds of appeal and paraphrase them as allegations of error in:

i. limiting a W.(D.) instruction to the testimony of the appellant instead of extending it to include other exculpatory evidence such as out-of-court statements by the appellant adduced during the case for the Crown;

ii. failing to instruct the jury on the limited permissible use of prior consistent statements by R.C.; and

iii. admitting and not providing proper instructions about jury use of the evidence of a witness, Joanne Beach, about an incident of uncharged misconduct on the part of the appellant with R.C.

Ground #1: The W.(D.) Instruction

[48] A brief reference to the evidence said to have been erroneously omitted from the W.(D.) instruction is sufficient background for an understanding of this complaint of legal error.

The Evidentiary Support

[49] As part of the case for the Crown, two witnesses testified about what the appellant said to them concerning his relationship with R.C.

[50] David Enns, a youth pastor at the church, reported R.C.'s disclosure of an emotional attachment to the appellant to a senior pastor at the church. The senior pastor, Lee Beach, recalled the appellant having acknowledged an emotional attachment to R.C. and a kiss, but nothing further.

[51] Robert DeJong, the chair of the School Board, recalled that at a Board meeting the appellant had described his relationship with R.C. as an emotional attachment that involved "a kiss". Mr. DeJong considered this a one-time indiscretion, and "a minor thing".

The W.(D.) Instruction

[52] The first W.(D.) instruction, as the trial judge realized, was deficient. In instructing the jury on assessing the accused's testimony, the trial judge said:

If you believe [M.P.'s] evidence that he did not commit the offence charged, you must find him not guilty.

If after careful consideration of all the evidence, you are unable to decide whom you believe, you must find [M.P.] not guilty, because the Crown would have failed to prove his guilt beyond a reasonable doubt.

And there is a paragraph missing, I will add this to my instruction and that is – even if you're left – I am going to make sure that that is correct and I will add that at the conclusion of my charge.

[53] Later, the trial judge instructed the jury to reach their verdict after considering the evidence as a whole:

In each case, your job is to decide what conclusions you will reach based upon the evidence as a whole, both direct and circumstantial. To make your evidence [sic], use your common sense and experience.

[54] At the end of his charge, the trial judge reminded the jury of his earlier error and instructed them in these terms:

You may recall early in my charge, I spoke about the testimony of the accused. I noted in my instructions to you that I believe something was missing. I am going to repeat that instruction to you with some additional instruction.

If you believe [M.P.'s] evidence that he did not commit the offence as charged, you must find him not guilty. If after careful consideration of all the evidence, you are unable to decide whom you believe, you must find [M.P.] not guilty because the Crown would have failed to prove his guilt beyond a reasonable doubt.

Even if you do not believe [M.P.'s] evidence, if it leaves you with a reasonable doubt about his guilt or about an essential element of an offence charge [sic], you must find him not guilty of that offence. Even if [M.P.'s] evidence does not leave you with a reasonable doubt of his guilt or about an essential element of an offence charged, you may convict him only if the rest of the evidence that you do accept proves his guilt of it beyond a reasonable doubt.

[55] In response to a question by the jury which sought clarification about the four specific incidents about which R.C. had testified, the trial judge explained:

If you accept the evidence of [M.P.] that there was only one unexpected and unintentional kiss or are left with a reasonable doubt by his evidence or any of the evidence, then you must find that that this touching was not for a sexual purpose and that the answer to question three is no. [Emphasis added.]

[56] Trial counsel for the appellant did not take any objection to this aspect of the charge at the pre-charge conference, after the charge was given, or in the answer to the jury's question.

The Arguments on Appeal

[57] The appellant says that the trial judge erred by failing to include in his W.(D.) instruction any reference to exculpatory evidence from sources other than the appellant's testimony; for example, the testimony of Enns and DeJong of exculpatory remarks made by the appellant at the church and school board meetings.

[58] The respondent rejects any claim of prejudicial error in the trial judge's instructions grounded on W.(D.). The respondent contends that the evidence relied upon here is not wholly exculpatory, rather only partially so since it reveals a physical relationship with a person whose consent is legally ineffectual. In addition, the respondent argues, the omission of the instruction now sought on appeal did not leave the jury untutored about the relevance of out-of-court statements in an assessment of the appellant's guilt. Its relevance was part of the defence position at trial, a position that the trial judge fairly summarized in his charge.

[59] The respondent further submits that the charge, read as a whole, brought home to the jury the need to consider all the evidence in determining whether the Crown had proven its case against the appellant beyond a reasonable doubt. Finally, the respondent notes that the complaint advanced on appeal was never raised by defence counsel at trial (not Mr. Shime).

The Governing Principles

[60] In this province at least, the instruction propounded in R. v. W.(D.), [1991] 1 S.C.R. 742 applies whenever credibility issues arise between the case for the Crown and evidence for the defence. The defence evidence may be an accused's testimony or out-court-statement, as for example on police interview tendered as part of the case for the Crown. Contradictory evidence may arise from other evidence called by the defence or conflicting evidence favourable to the defence in the case for the Crown. This evidence may require the jury to make factual findings. The decision in W.(D.) applies in these circumstances: R. v. D.(B.), 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 105 and 114. It explains how the principle of reasonable doubt relates to the process by which the jury resolves conflicting evidence. The jury must understand that it is not essential for them to believe the defence evidence, but rather that it is enough that, considered in the context of all the evidence, the conflicting evidence leaves them with a reasonable doubt about the accused's guilt: D.(B.), at para. 114.

[61] A second point concerns instructions about the evidentiary value of a "mixed" out-of-court statement of an accused. A "mixed" statement is one in which some of the contents are inculpatory and other parts exculpatory. Instructions on the exculpatory parts of the statement must make it clear that these parts of the statement retain their evidentiary value in exculpation as long as the jury does not reject them as untrue: R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at paras. 32-34. But the failure of a trial judge expressly to instruct the jury in these terms is not necessarily a fatal blow to a conviction provided that the charge, as a whole, makes the burden of proof in relation to reasonable doubt and issues of credibility clear to the jury and does not leave the case for them to decide on an "either/or" basis: R. v. B.(P.), 2016 ONCA 12, 346 O.A.C. 1, at para. 14.

The Principles Applied

[62] As I will explain, I would not give effect to this ground of appeal.

[63] First, I approach the task of assessing the impact of the omission in issue mindful of the appellant's entitlement – a properly instructed jury, not a perfectly instructed jury: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at paras. 41-42; R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 2 and 62. And by being equally attentive to the necessity of considering the whole of the charge and other aspects of the trial, such as the addresses of counsel and the positions they advanced: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39.

[64] Second, the appellant's complaint is based on his characterization of his utterances as exculpatory evidence. But it may be open to question whether that is a fair characterization of their overall tenor. Much depended on what the jury found the appellant actually said and how they interpreted it in light of his testimony at trial.

[65] In addition, any claim of prejudicial non-direction cannot be determined without regard to the charge as a whole. For passages elsewhere in the charge go some way to repairing the prejudice said to follow from the omission. In summarizing the position of the defence, the trial judge described the truth about what happened as a kiss initiated by R.C. and stopped by the appellant. This was, after all, the substance of the defence. The trial judge also referenced the out-of court statements at issue in his summary of the evidence the jury had to consider in determining whether the appellant had "touch[ed] [R.C.] with his hand, his lips, or his body". And throughout the charge, the trial judge emphasised the jury's obligation to consider all the evidence before rendering its verdict. Such an instruction would encompass the evidence said to have been wrongly excluded from the W.(D.) instruction.

[66] Finally, trial counsel did not object to the introduction of this evidence, rather sought to use it as a prior statement consistent with the appellant's rendition of events and inconsistent with the detail provided of other incidents in the complainant's trial testimony. Nor did trial counsel object to the absence of the instruction now said to have been essential for a fair trial. Trial counsel's silence provides some indication that the absence of the instruction now sought did not prejudice the appellant: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

Ground #2: The Instruction on R.C.'s Prior Statement

[67] The second ground of appeal also advances a claim of non-direction relating to the limited use of out-of-court statements, in this instance, by R.C. These statements were made several years before the appellant was charged. A brief description of those statements and the circumstances in which they were made provides sufficient background to determine whether the claim of prejudicial error succeeds.

The Prior Disclosures

[68] In 2004, several years after she had described her relationship with the appellant to church elders, R.C. confided in L.D., her university roommate, that she had been "molested by a youth group leader". R.C. did not describe the nature of the molesting, nor did she identify the youth leader involved. About a decade later, R.C. gave a statement to the police.

[69] Trial counsel for the appellant took no objection to the admissibility of R.C.'s prior statements at trial. During his questioning of R.C., counsel suggested that she was fabricating several of her allegations. In an exchange with the trial judge, counsel made clear that recent fabrication was a live issue.

The Instructions of the Trial Judge

[70] In his discussion of the evidence relating to the several specific incidents described by R.C. under the general heading "[d]id M.P. touch R.C. with his hand, his lips or his body", the trial judge referred to R.C.'s disclosures to the police and to L.D. The judge described the police interview as the first time R.C. had "particularized her allegations in writing", but said nothing about the actual details she provided.

[71] In connection with the disclosure to L.D., the trial judge reminded the jury that R.C. had told L.D. that "she was manipulated and molested by a youth leader".

[72] Defence counsel did not seek or complain about the omission of any mid-trial or final instruction about the jury's use of this evidence in reaching its verdict.

The Arguments on Appeal

[73] The appellant says that the trial judge erred in failing to instruct the jury in express terms about the limited use of R.C.'s prior consistent statements, in particular, her disclosure to L.D. at university.

[74] The nub of the appellant's complaint has to do with the complete deficit of instruction on how the jury could handle this evidence in reaching its verdict. The jury was never told that the disclosure to L.D. could not be used as evidence that R.C. was manipulated and molested by a youth leader. Nor was the jury advised that they could only consider the fact that R.C. complained to L.D. to explain the unfolding of events and how the allegations came to the attention of the police and the courts. Instructions about the prohibited and permitted use of this evidence were crucial in a case such as this where the primary issue was credibility. This omission was exacerbated, and improper use of the evidence rendered more likely, when the trial judge referred to it as relevant on the issue of whether a touching occurred.

[75] The respondent begins with a submission about the admissibility of R.C.'s prior statement to L.D. This evidence, the respondent says, was properly admitted on any or all of three bases which constitute exceptions to the exclusionary rule:

i. as narrative;

ii. to rebut an allegation of recent fabrication; and

iii. to rebut the attack on R.C.'s credibility based on prior inconsistent statements concerning the same subject-matter.

[76] As for the absence of a mid-trial or final instruction about the limited use the jury could make of R.C.'s prior consistent statement in reaching its verdict, the respondent points out that while the general rule favours such an instruction, there is no universal requirement. In this case, the traditional limiting instruction was not necessary because:

i. the appellant relied upon the absence of the detail in any disclosure to L.D. to advance an argument that the detailed incidents revealed later were a product of subsequent EMDR therapy;

ii. there was no reasonable likelihood that this disclosure, barren of detail, would be used by the jury as proof of the specific incidents or confirmatory of R.C.'s testimony about them; and

iii. no one relied upon this disclosure for either of the purposes identified in (ii).

The Governing Principles

[77] As a general rule, prior consistent statements of a witness in a criminal case are inadmissible. They lack probative value. They are self-serving. They are easily fabricated. They are redundant. Their repetition before the trier of fact is capable of working significant prejudice: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Demetrius, 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 12; R. v. J.(M.A.), 2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 45.

[78] Like other admissibility rules which are primarily exclusionary in their effect, the general rule enjoining introduction of prior consistent statements of a witness brooks exception: Stirling, at para. 5; J.(M.A.), at para. 46. These exceptions permit introduction of prior consistent statements for restricted purposes which differ depending on the exception: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 27. To rebut a claim of recent fabrication: Stirling, at paras. 5 and 7; R. v. Evans, [1993] 2 S.C.R. 629, at p. 643. As narrative: R. v. F.(J.E.), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476; Khan, at paras. 29-30. And to provide context in which to assess attacks on testimonial reliability based on alleged prior inconsistencies: R. v. O.(L.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 34.

[79] Where a prior consistent statement has been admitted as an exception to the exclusionary rule, a trial judge is generally required to instruct the jury about the use that they must not make of this evidence, as well as any use which is permissible: Demetrius, at para. 21; J.(M.A.) at para. 47. The prohibition is against use of the statement as proof of the truth of its contents: J.(M.A.), at para. 47; F(J.E.), at p. 476. The permitted use varies with the particular exception engaged.

[80] The effect of the failure of a trial judge to properly apprise a jury about the limited use of prior consistent statements in reaching its verdict varies. Sometimes fatal. Other times, not. As noted above, perfection is not the standard by which we are to judge the adequacy of jury instructions. Each case falls to be decided according to its own idiosyncratic facts, but the authorities yield some relevant considerations:

i. Did the prior consistent statement extend beyond the mere fact of its making to include incriminatory details?

ii. How many prior consistent statements were introduced or repeated?

iii. Who introduced the evidence?

iv. Did the party introducing the evidence rely on it for a prohibited purpose?

v. Was any objection taken to the introduction of the prior consistent statements or to the failure to provide instructions limiting their use?

See, for example, J.(M.A.), at para. 64; O.(L.), at paras. 39-40; Ellard, at paras. 43-44; and R. v. T.(M.), 2012 ONCA 511, 289 C.C.C. (3d) 115, at paras. 67-70.

The Principles Applied

[81] As I will briefly explain, I would reject this ground of appeal.

[82] As it seems to me, L.D.'s evidence of R.C.'s statement could have been admitted as narrative and to rebut an allegation of recent fabrication – the triggering event being the EMDR therapy – if not also to counter claims that R.C. was not credible and her evidence not reliable because of inconsistencies in her various accounts.

[83] It is common ground that the trial judge failed to tell the jury when L.D. gave evidence of R.C.'s disclosure or in his final instructions that the jury:

i. must not infer the truth of R.C.'s allegations from her repetition of her complaint of molestation to L.D.; and

ii. must not use this prior consistent statement to confirm or corroborate R.C.'s testimony.

[84] The instructions about whose absence the appellant complains could have been given. In a perfect jury charge, these instructions would have been given. But perfection is not the standard by which we determine the adequacy of a jury charge. Every omission, every failure to achieve perfection, does not constitute a miscarriage of justice which requires appellate intervention. Several reasons persuade me that even if the trial judge committed legal error by omitting the instruction now sought by the appellant, this omission did not cause the appellant any substantial wrong or miscarriage of justice: Criminal Code, s. 686(1)(b)(iii).

[85] First, the Crown did not rely on this out-of-court statement for the truth of its contents, such as they were. It was no part of the Crown's case that the jury should believe R.C. because she told L.D. that she had been manipulated and molested by a youth leader. In other words, the party who led the evidence – the Crown – did not invite the jury to use the evidence in reaching their verdict by a process of reasoning that a limiting instruction would have prohibited.

[86] Second, the paucity of detail in the statement – a barren claim of molestation and manipulation – was unlikely to nourish any finding that any specific incident described by R.C. occurred as she alleged.

[87] Third, the defence relied upon the default of detail to support its assertion that R.C.'s allegations were the outcrop of EMDR therapy not the conduct of the appellant.

[88] And finally, the failure of trial counsel to object to the introduction of the evidence or to the absence of limiting mid-trial and final instructions reinforces my conclusion that the appellant suffered no prejudice as a result of the admission of the evidence or the absence of an instruction limiting its use by the jury.

Ground #3: The Evidence of Joanne Beach

[89] The final ground of appeal relates to the admissibility of the evidence of Joanne Beach introduced as part of the case for the Crown and the failure of the trial judge to instruct the jury about its limited use in reaching its verdict.

The Incident

[90] Joanne Beach was a parishioner and the spouse of a pastor at the church both R.C. and the appellant attended. On a single occasion, in 1998 or 1999, Ms. Beach walked into the sanctuary of the church. There she noticed R.C. and the appellant. R.C. seemed to be getting up from the appellant's lap. Ms. Beach described what she saw as a playful moment. It was a joke, accompanied by laughter. No intimacy was apparent.

The Charge to the Jury

[91] In his instructions to the jury on the position advanced by the Crown, the trial judge referred briefly to Joanne Beach's evidence when he discussed the observations of church officials about the nature of the relationship between the appellant and R.C. Nothing was said about the incident in the judge's summary of the position of the defence.

[92] The trial judge was not asked and did not caution the jury about the prohibition against propensity reasoning as a basis upon which to find or to assist in finding the appellant's guilt had been established beyond a reasonable doubt.

The Arguments on Appeal

[93] The appellant points out that the trial proceeded on the basis of an acknowledged emotional intimacy between the appellant and R.C. The controversy at trial was whether that emotional intimacy extended to physical intimacy, as the Crown alleged and was bound to prove, or ended with emotional intimacy, as the defence contended.

[94] In these circumstances, the appellant continues, the only reasonable basis for the tender of this evidence by the Crown was to demonstrate some form of inappropriate physical intimacy between the appellant and R.C. To utilize this evidence for this purpose is to use it to establish propensity and to invite its use in an impermissible way to prove or assist in proving guilt.

[95] To make matters worse, the appellant says, the trial judge failed to divert the jury from reasoning from conduct to propensity, and from propensity to guilt. Such an instruction was essential to a fair trial and a verdict uncontaminated from a process of reasoning against which the law sets its face.

[96] The respondent rejects the suggestion made by the appellant for the first time in this court that the evidence of Joanne Beach should have been excluded. This evidence was relevant to assist in understanding the true nature of the relationship between R.C. and the appellant. It tended to show, contrary to the appellant's characterization of it, that the relationship extended beyond the emotional to a physical intimacy. No admissibility rule barred its reception.

[97] On the subject of jury instructions, the respondent says that we have no invariable rule that the instruction for which the appellant contends must be given. The circumstances of each case are controlling. In this case, the respondent argues that despite the absence of a specific restricted use instruction, there was no realistic risk that the jury would travel the forbidden propensity route to find the appellant's guilt established. The evidence related to a single incident. What was observed was less disreputable than the conduct charged. The witness herself did not consider what she saw as untoward or improper. The Crown did not invite the jury to make improper use of the evidence. And defence counsel uttered not a single whisper of protest. Not to the admissibility of the evidence. Nor to the absence of an instruction about its use.

The Governing Principles

[98] It is a commonplace of our adjectival law that evidence that does no more than demonstrate that an accused is a person of bad character and for that reason is likely to have committed the offence charged is generally inadmissible: R. v. B.(F.F.), [1993] 1 S.C.R. 697, at pp. 730-731. Like other rules of admissibility, its exclusionary effect is not unyielding, ceding admission where the probative value of the evidence exceeds its prejudicial effect.

[99] Evidence of extrinsic misconduct – other bad acts – is admissible by exception where it shows or tends to show the nature of the relationship between a complainant and the accused: R. v. K.(K.), 2007 ONCA 203, 222 O.A.C. 99, at para. 8. See also, R. v. O.(R.), 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 16. Evidence of discreditable conduct may also be admissible where it provides narrative required to supply context for the evidence directly relevant to the charges and where its probative value exceeds its prejudicial effect: R. v. B.(C.), 2008 ONCA 486, 237 O.A.C. 387, at para. 30.

[100] Limiting instructions about evidence of extrinsic misconduct are not necessary in every case in which such evidence has been introduced: T.(M.), at para. 88; R. v. Beausoleil, 2011 ONCA 471, 277 C.C.C. (3d) 50, at para. 20; B.(C.), at para. 35. Among the factors relevant in determining whether a limiting instruction should be given are:

i. the nature and extent of the evidence of extrinsic misconduct;

ii. the relative gravity of the extrinsic misconduct in comparison to the gravity of the misconduct charged;

iii. the likelihood that a limiting instruction may reasonably draw attention to the discreditable conduct; and

iv. the extent of the risk that without instruction the evidence may be used improperly.

See, T.(M.), at para. 88; Beausoleil, at para. 20.

The Principles Applied

[101] In my view, this ground of appeal fails on both claims of alleged error.

[102] To take first, the admissibility of the evidence.

[103] The critical issue at trial had to do with the nature of the relationship between R.C. and the appellant. R.C. said it was not only emotional, but also physical, as revealed by the specific incidents about which she testified. The appellant said that it was emotional but only emotional, her unwanted kiss of him aside. He resisted any suggestion of a physical component to their relationship.

[104] The evidence of Joanne Beach, now said to have been improperly admitted, was of a single incident that tended to shed light on the nature of the relationship between the principals. To some it may appear to be of limited probative value. But the same could be said of its prejudicial effect. Characterized by its reporter, Joanne Beach, as no more than odd for a married man. Sufficiently unremarkable to counsel attuned to the best interests of the appellant and his right to a fair trial not to warrant objection. It warrants no intervention here.

[105] Nor am I persuaded that the failure of the trial judge to instruct the jury in express terms about their use of this evidence during their deliberations caused the appellant any prejudice. Several factors lead me to this conclusion.

[106] First, the nature and extent of the evidence. Joanne Beach reported a single incident she characterized as "odd" behaviour for a married man. What she described was not a crime. In other words, this is not a case involving extrinsic misconduct extending over a lengthy period of time and constituting uncharged criminal activity.

[107] Second, Crown counsel did not invite the jury to make improper use of this evidence. Thus, there was little risk of the jurors detouring down a path of prohibited propensity reasoning, advanced to prove guilt: T.(M.), at para. 67.

[108] Finally, trial counsel did not seek or object to the omission of a limiting instruction. It is not without significance that a limiting instruction would have required a repetition of the evidence to which it applied. Sometimes, the less said the better. Out of sight. Out of mind. That is this case.

Conclusion

[109] I would dismiss the appeal.

Released: July 3, 2018

"David Watt J.A."

"I agree. David Brown"

"I agree. Grant Huscroft J.A."

Footnote

[1] In addition to the incidents described below, R.C. also testified that while she was watching a movie with the appellant at her house in 1996, she played with his erect penis with her foot under a blanket. M.P. denied this incident.