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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2020-01-02 Docket: C64337 Judges: K. van Rensburg J.A., M.L. Benotto J.A., Harvison Young J.A.
Between: Her Majesty the Queen, Respondent And: G.H., Appellant
Counsel: Catriona Verner, for the appellant Joanne K. Stuart, for the respondent
Heard: December 9, 2019
On appeal from: The conviction entered on January 25, 2017 by Justice Wolfram U. Tausendfreund of the Superior Court of Justice, sitting with a jury.
By the Court: Benotto J.A.
[1] A jury found the appellant guilty of sexual interference and incest in relation to one of his daughters. The complainant alleged that he had touched her and engaged in sexual intercourse with her over a period of years, up to the night before she disclosed the alleged abuse. The defence theory at trial was that the complainant had fabricated her allegations so that her mother, who was travelling for work, would return home.
[2] The appellant alleges that the trial judge erred by: (i) allowing the Crown to cross-examine him about why his daughter would lie; (ii) failing to properly instruct the jury with respect to consistent and inconsistent statements of the witnesses; (iii) permitting the Crown to violate the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.); and (iv) misstating the evidence during his charge to the jury.
[3] As I will explain, the cross-examination of the appellant about the complainant’s motive to lie was improper and prejudicial and the trial judge’s failure to instruct the jury on a prior inconsistent statement of a witness was an error of law. Taken together, these errors require a new trial. It is therefore not necessary to address the other grounds of appeal.
Facts
[4] The appellant lived with his wife and three daughters. In June 2011, his wife started a new job in Alberta that required her to be away from home for two weeks at a time. The complainant missed her mother very much.
[5] A family friend, “S.C.”, and her son lived with the appellant and his family. S.C. was close to the complainant and was like a second mother. In September 2014, the appellant began having an affair with S.C.
[6] The complainant is the youngest of three daughters. She alleged that, beginning when she was six years old, the appellant touched her crotch in his room and in the backyard pool. Beginning when she was nine years old, he had intercourse with her several times, sometimes using a purple vibrator and Vaseline. He never used a condom and used a towel to wipe down the vibrator and himself. He would give her cash afterwards.
[7] On March 3, 2015, the complainant disclosed the abuse to friends, a teacher, and the police. She told the police that intercourse had occurred the night before in the appellant’s bed.
[8] The appellant was arrested the same day. S.C. was interviewed and told the police that the night before – on March 2, 2015 – the complainant started out sleeping in her bed but got up in the night to go and sleep in the appellant’s bed.
[9] The police searched the home and found a purple vibrator, Vaseline, and a towel near the appellant’s bed. One of the complainant’s pillows was on the bed.
[10] DNA testing on the seized items showed the following:
- The complainant’s DNA was not found on the vibrator, Vaseline or towel.
- The appellant’s DNA was found on the complainant’s neck but not her genitalia. (He testified that he had kissed her when she left for school that day).
- The appellant’s DNA was found on the vibrator, as was female DNA that did not match the complainant.
- A small amount of semen, Vaseline and male DNA was found on the outside of the complainant’s vagina. No semen was found on internal and external vaginal swabs.
- Semen was found on the crotch of the complainant’s underwear.
[11] A physician examined the complainant but could not confirm whether she had been assaulted or whether she had ever engaged in intercourse.
The Trial
Cross-examination of the appellant
[12] At trial, defence counsel (not appellate counsel) cross-examined the Crown witnesses on the fact that the complainant had difficulty with her mother being away from home and that her mother had returned home immediately as a result of the allegations. The appellant, who testified at trial, did not state in his direct evidence that he thought the complainant fabricated the allegations to bring her mother home, or at all. His counsel had raised this as a theory in her cross-examination of the complainant and other Crown witnesses. However, the Crown cross-examined the appellant as follows:
Q. So, if we believe what you’re indicating and that this never happened, [the complainant is] what, fabricating these allegations? A. Yeah, obviously. Q. She missed her mom so much that she made up these allegations against you, is that your understanding? A. I would hope that she didn’t, but it sure appears that way, yes. I’m going to say, yes. She missed her mother. She wanted her mother home and yes, I believe that the easiest way to make sure her mother stayed home and did not go back out west was to ensure that there was a reason for her to stay here.
[13] Defence counsel interjected as follows:
[CROWN]: Your Honour there’s an objection. [DEFENCE]: Your Honour my friend has canvassed this area with my client and he .... THE COURT: I’m sorry? [DEFENCE]: My friend has canvassed this with my client. He has answered the questions. I don’t think that he can know with any detail what was in his daughter’s head. He has answered the question and .... THE COURT: Well, that’s likely so, yes, but I think it’s relevant what [the appellant] believes that her motivation might have been. It’s not about what was in her head, but what he believes. Please continue.
[14] The questioning continued, and the Crown ended the cross-examination as follows:
Q: …I’m going to suggest to you the reason why she said the things that she did is because they are true? A: They are not true. I did not sexually assault my daughter. Q: And nothing else makes sense given what we’ve heard over the course of this trial. Isn’t that correct? A: I can’t answer that question.
The prior inconsistent statement
[15] Where the complainant slept on March 2, 2015 (the night before the disclosure) became a significant issue at trial.
[16] The complainant testified that she slept in the appellant’s bed where she woke up.
[17] Both of the complainant’s sisters testified that the complainant slept in S.C.’s bed. One sister testified that she explicitly remembered going to S.C.’s room to wake the complainant for school. The other sister, a Crown witness, testified that she did not remember the complainant ever sleeping in the appellant’s room, let alone that night – except perhaps when she was sick.
[18] S.C. testified that the complainant slept with her that night. She was cross-examined about the police statement where she had stated that the complainant started the night with her but got up during the night and went to the appellant’s room. She explained that, when she gave the statement on March 3, 2015, she was confused as a result of the allegations, did not think there was any significance to the sleeping arrangements, and was in error. She did not adopt the prior inconsistent statement.
Crown closing
[19] The Crown relied on the cross-examination of the appellant in closing submissions:
The Defence will have you believe that [the complainant] fabricated or made up these allegations …because she missed her mother, wanted her back home. I ask you to apply your common sense and ask yourself does that make sense? Is it logical that [she] waits five years before saying anything and at the age of eleven concocts this entire elaborate extreme plan just to get her mother home? No.
[20] The Crown also asked the jury to disbelieve the sisters’, the appellant’s and S.C.’s trial testimony, and instead rely on S.C.’s prior inconsistent statement, which “on its face would corroborate what [the complainant] was saying.”
The jury charge
[21] The trial judge referred to the cross-examination of the appellant concerning the complainant’s motive to fabricate, and specifically invited the jury to consider this evidence in assessing the appellant’s guilt:
When asked about [the complainant’s] allegation of sexual touching and intercourse with him, he agreed with the Crown that [she] missed her mother, wanted her home and that she made up this evidence, he stated, to have her mom return from Alberta.
[22] The trial judge also referred to S.C.’s prior inconsistent statement when reviewing the evidence at trial. He stated:
[S.C.] agreed that in her statement of March 3rd, …[the complainant] had gotten up during the night and had gone to her father’s room…. She stated that this however was not correct. She had planned on correcting that statement at the time of the preliminary inquiry when she testified. However she did not as she was not asked about it.
[23] The trial judge did not provide the jury with a limiting instruction regarding the use that could be made of the prior inconsistent statement.
Discussion
The cross-examination of the appellant
[24] This court has consistently held that “it is improper to call upon an accused to comment on the credibility of his accusers”: see R. v. Rose (2001), 53 O.R. (3d) 417 (C.A.), at para. 27. In R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, Simmons J.A. explained the twofold rationale to preclude this line of questioning: it is improper for a witness to remark on another witness’s truthfulness and there is a risk the burden of proof may be improperly shifted to the accused. Moreover, in a jury trial, this type of questioning may lead the jury to draw an adverse inference if the accused is unable to provide a compelling answer for why the complainant made the allegations. A more comprehensive discussion of these concerns appears at paras. 15-16:
First, as a general matter, it is improper to invite one witness to comment on the veracity of another. This principle has particular application to an accuser and the accused. As noted by Charron J.A. in R. v. Rose (2001), 53 O.R. (3d) 417 (C.A.) at para. 27, this court “has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers”.
Second, questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focusing on whether the accused can provide an explanation for the complainant’s allegations instead of focusing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true. As this court said in R. v. F.(C.), [1996] 623 (Ont. C.A.), such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a “reasoned or persuasive” response. [Citations omitted.]
[25] In R. v. T.M., 2014 ONCA 854, leave to appeal refused, [2015] S.C.C.A. No. 110, this court explained the scope of permissible questions about a complainant’s motive to fabricate. Questions that explore the nature of the relationship between the appellant and the complainant are proper. These questions elicit information within the appellant’s knowledge: at para. 40. However, questions that go to motive “become improper when they go beyond eliciting facts known to the accused and instead invite the accused to speculate”: at para. 41.
[26] The Crown submits that the cross-examination was proper because defence counsel had raised recent fabrication and offered the motive for the fabrication. Thus, the Crown was entitled to explore this line of questioning in the cross-examination of the appellant.
[27] I do not agree.
[28] The questions were improper. The questions did not concern the relationship between the family members, but rather asked the appellant to offer an explanation for the complainant’s allegations. In asking the appellant about why the complainant made the allegations, the Crown stated, “nothing else makes sense given what we’ve heard”. As a result, the questions caused the appellant to speculate about the reasons for the accusation and to come up with a reason “that makes sense”.
[29] The trial judge’s comments in response to defence counsel’s objection cemented the unfairness when he said that the questions were “relevant” because of what the appellant believed the complainant’s motivation may have been. This is both wrong and misleading. What the appellant “believed” to be the complainant’s motivation was not relevant. The questioning was misleading because the jury could have been left with the impression that he should have had a credible explanation for the allegations.
[30] The Crown compounded this impression in closing submissions, which referred to the appellant’s cross-examination as not making sense.
[31] The trial judge should have instructed the jury to ignore the portion of the cross-examination requiring the appellant to explain the reasons for the allegations. In connection with this corrective instruction, the trial judge should have reminded the jury of the presumption of innocence and the burden of proof. In this case, the standard charge given on the presumption of innocence and the burden of proof was not sufficient to explain to the jury why this evidence, although referred to by the judge and the Crown, should be ignored. The failure to give proper jury instructions was an error.
The prior inconsistent statement of S.C.
[32] A prior inconsistent statement can be used to cross-examine a witness. It can only be used on the issue of credibility. However, unless the prior inconsistent statement is adopted by the witness, it cannot be used for the truth of its contents. Failure to provide a limiting instruction to the jury has been held to be a reversible error: Deacon v. The King, [1947] S.C.R. 531; McInroy and Rouse v. R., [1979] 1 S.C.R. 588; R. v. Mannion, [1986] 2 S.C.R. 272.
[33] The Crown submits that the appellant is precluded from raising this issue now because defence counsel failed to pursue the request at the pre-charge conference. At the pre-charge conference, the trial judge appears to have been mistaken about the law. When the Crown referred to S.C.’s prior inconsistent statement, the trial judge said:
These are two different statements … and it’s up to [the jury members] to decide as to which of the two versions to accept ….
[34] In the present appeal, this error of law is not excused by the failure of defence counsel to object. As I explain below in connection with the proviso, the jury could have accepted the prior inconsistent statement for the truth of its contents and concluded that the complainant slept in the appellant’s bed on the night of March 2, 2015. It was up to the trial judge to make it clear to the jury that the prior inconsistent statement could not be used for the truth of its contents whether or not defence counsel raised the issue. As stated by Spence J. in R. v. Squire, [1977] 2 S.C.R. 13, at p. 19:
It is … the duty of a trial judge to submit to the jury in his charge any defence available to the accused which had been revealed by the evidence whether or not counsel for the accused chose to advance that defence in his address to the jury. [Citations omitted.]
[35] Nor can it be remedied, as submitted by the Crown, by the standard jury charge concerning the assessment of credibility. Those instructions are meant to help jurors assess credibility. One of the factors that can be considered is whether the witness said something different at another time. This standard charge is not a substitute for a specific limiting instruction when, as here, it is required. The trial judge should have explained to the jury the permitted use of the particular prior inconsistent statement at issue, followed by its prohibited use. Instruction on the “evidentiary value of prior inconsistent statements … is essential to proper juror understanding of the use of this evidence”: David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Canada, 2005), at p. 77. This instruction is important to remind jurors to use their common sense in assessing how much reliance to place on the witness’s testimony at trial and that “the fact, nature and extent of the differences, as well as any explanation … for them are factors to consider” in assessing the credibility and reliability of a witness’s testimony: Watt, at p. 78.
[36] The importance of these jury instructions is exactly what is referred to in R. v. Bevan, [1993] 2 S.C.R. 599, at p. 618:
The real danger flowing from the failure of the trial judge to instruct the jury on the use that may be made of prior inconsistent statements is that the jury may not have understood that such statements could not be used as evidence to prove the truth of their contents. This danger was exacerbated by the trial judge's making a number of comments that may have caused the jury to conclude that all prior statements (consistent or inconsistent) could be used as substantive evidence.
[37] The failure to provide a limiting instruction here was an error of law.
The Proviso
[38] The Crown submits that if this court concludes there were reversible errors, the curative provision should be applied. The Crown submits that there has been no substantial wrong or a miscarriage of justice as a result of the trial judge's errors because "the verdict would necessarily have been the same if such error had not occurred": see Colpitts v. The Queen, [1965] S.C.R. 739, per Cartwright J. (as he then was), at p. 745; Wildman v. The Queen, [1984] 2 S.C.R. 311, at pp. 328-29.
[39] I do not agree that the verdict would necessarily have been the same, particularly without a limiting instruction on S.C.’s prior inconsistent statement. Absent that instruction, there was no way for the jury to know that S.C.’s statement to the police could not be relied on for the truth of its contents. Given the significance of the sleeping arrangements on the night of March 2, 2015, it is entirely likely that the jury accepted the prior inconsistent statement to confirm that the complainant slept in the appellant’s bed. This prospect was all the more possible given the trial judge’s remarks regarding the earlier version of the statement.
[40] I therefore do not accept that – absent the errors – the verdict would have been the same.
Disposition
[41] I would allow the appeal and order a new trial.
Released: January 02, 2020
“MLB” “M.L. Benotto J.A.” “I agree. K. van Rensburg J.A.” “I agree. Harvison Young J.A.”