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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220328 DOCKET: C67177
van Rensburg, Nordheimer and George JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
I.W. Appellant
Counsel: Mark C. Halfyard, for the appellant Caitlin Sharawy, for the respondent
Heard: February 2, 2022 by video conference
On appeal from the conviction entered on April 30, 2019 by Justice Stephen T. Bale of the Superior Court of Justice, sitting with a jury.
George J.A.:
[1] The appellant was charged with sexual assault, sexual interference, uttering a threat to cause death, and sexual exploitation. He pleaded not guilty, but after his trial a jury found him guilty of all three sexual offences. He was found not guilty of the uttering a threat offence.
OVERVIEW
[2] The complainant, M.B., was a friend of the appellant’s daughter, M.S. At the time of these events, the appellant was 38 and 39 years old. The allegations span a period beginning when M.B. was 15 years old and ending when she was 16 years old.
[3] The appellant acknowledged that he had a sexual relationship with M.B. but denied that it began before she turned 16 years old. On the exploitation count, he denied providing the complainant alcohol and cigarettes.
[4] Apart from the exploitation count – which required a distinct consideration and had more to do with whether the appellant gave M.B. alcohol and cigarettes in exchange for sex – and the uttering a threat count, the central question for the jury was when did their sexual relationship commence. This was crucial because, when M.B. was under the age of 16, as a matter of law, she could not consent. Setting aside for a moment the question of exploitation, if M.B. was over 16, she was capable of consenting. M.B. turned 16 in mid-May 2016.
[5] The appellant appeals against conviction, advancing these three grounds:
i.) the trial judge erred by failing to provide a “no probative value” instruction to the jury after the complainant’s outbursts;
ii.) the trial judge erred by permitting the Crown to lead a prior consistent statement, and in not instructing the jury on its limited use; and
iii.) the trial judge erred by failing to adequately correct the Crown’s misstatement of the facts relating to the timing of the alleged assaults in its closing address to the jury.
[6] The appellant also seeks to introduce fresh evidence that speaks to when he took possession of a rental apartment in Brooklin, which is where M.B. says most of the sexual activity occurred.
[7] For the reasons that follow, I would not admit the fresh evidence and I would not give effect to any of the grounds of appeal. Accordingly, I would dismiss the appeal.
EVIDENCE AT TRIAL
Complainant, M.B.
[8] M.B. was 18 years old at the time of trial. As indicated, she alleged that the events in question took place when she was between 15 and 16 years old. Pursuant to s. 715.1 of the Criminal Code, she adopted her police statement as part of her evidence at trial.
[9] M.B. and the appellant met in 2015. As mentioned, she and the appellant’s daughter, M.S., were friends. M.B. testified that, before New Year’s Eve 2015, the appellant purchased bras and underwear for her. She said that after the purchase the appellant texted her and asked her to send him a picture of her in the underwear. In her statement to the police, she said she told him no. However, at trial she testified that she did take a “selfie” in the underwear and sent it to the appellant. When cross-examined on the inconsistency she explained that “I guess I didn’t really remember it” before.
[10] A short time after this event (and when she was still 15), on New Year’s Eve 2015, the complainant went to the residence of M.S.’s mother where she spent time with M.S. and the appellant. M.B. testified that the appellant supplied them both with vodka and that she became intoxicated. At some point during the evening, M.S. went upstairs to have a shower. While M.S. was doing that, M.B. said that the appellant sat beside her on the couch and started to touch her. She testified that she told him no, but that he moved on top of her and because he was much bigger there was little she could do to stop him. She said the appellant pulled her pants down and had intercourse with her. M.S. returned downstairs a short while later. It seemed, to M.B., that M.S. knew something was amiss, though nothing was said.
[11] M.B. told the police that after the New Year’s Eve incident she became depressed and began to use alcohol and marijuana to cope. She acknowledged at trial, however, that her problematic use of alcohol had begun before New Year’s Eve. According to her police statement, about three to four weeks after New Year’s Eve – at some point near the end of January or start of February 2016 – she posted on Facebook asking if anyone could “buy [her] a bottle”. The appellant messaged her that he could, and they began communicating over text and Facebook Messenger. She ended up going to his home in Brooklin, where he lived alone in a basement unit. This was when the appellant began providing her alcohol and cigarettes and when their sexual relationship began in earnest. She said something different at trial, indicating that the first incident after New Year’s Eve occurred at a home in Oshawa and not Brooklin. When asked about this inconsistency M.B. explained that when she spoke to the police, she was merely confused about the location because most of their sexual encounters occurred in the appellant’s Brooklin apartment. According to M.B., the pattern that developed went something like this: The appellant would supply her with alcohol – usually Raspberry Smirnoff – which led to her getting intoxicated and the two having sex. On her account, they met up once or twice per week. She maintained that she had no other way to obtain alcohol, except through the appellant.
[12] The two would routinely communicate through text and Facebook Messenger. M.B. had saved the appellant’s contact on Facebook Messenger under a pseudonym. They spoke occasionally by phone, but not before M.B. turned 16.
[13] During her testimony, several Facebook messages were tendered. All were sent (or received) after the complainant turned 16. She testified that she initially deleted their messages on the appellant’s request, but she eventually stopped deleting them. Most messages were from the appellant. M.B. testified that she did not recall responding to most of them. Near the end of their relationship the appellant sent several angry messages where, in some of them, he called M.B. derogatory names.
[14] M.B. estimated that they had sex about 30 to 40 times, on most occasions at the appellant’s Brooklin apartment, but sometimes at a house in Oshawa. M.B. was not able to provide an address for the Oshawa house.
[15] This all came to a head when M.S. found out about the relationship between M.B. and her father. M.S. learned of it after looking through M.B.’s phone. M.S. blamed M.B., which led to M.S. and her boyfriend confronting M.B. on August 15, 2016, which ended in the two having a physical confrontation. As a result, M.S. was charged with assault. For obvious reasons, the friendship ended.
[16] At trial, and during her testimony, M.B. had several outbursts. At one point, in the presence of the jury, she said to defence counsel: “You’re defending a creep. You’re defending a fucking creep”. At other points, again with the jury present, she referred to the appellant as a “loser”, a “creep” and a “rapist”. After the first outburst, the jury was immediately excused. The appellant then brought a mistrial application, which was denied. The trial judge did, however, provide a limiting instruction, which I will return to in my discussion of the first ground of appeal.
Complainant’s father, J.B.
[17] The complainant’s father, J.B., testified about New Year’s Eve 2015. He advised that after M.B. returned home – just before midnight – she was upset but would not say why. He just assumed it was because she was having some difficulties with her mother. He testified that M.B. told him of the relationship in April 2017.
[18] He spoke of the day M.B. made her complaint to the police, in August 2017. He testified that he drove M.B. to her part-time job. Once they arrived, M.B. advised that she did not want to leave the car and go in. It was J.B.’s understanding that this was on account of the rumours that had been swirling among her peers, including her co-workers, about M.B. and the appellant, rumours that were getting worse and worse and which had spread online. He then drove her directly to the police station.
Appellant
[19] The appellant testified that on New Year’s Eve 2015 his plan was to visit with his daughter, M.S., at his ex-wife’s house. They were going to celebrate the occasion by eating junk food and watching movies. He advised that M.B. arrived at around 10:00 p.m., and that she appeared to be intoxicated. Neither he nor M.S. had been drinking. As he was getting ready to leave to go and purchase firewood and snacks at a nearby gas station, M.S. went upstairs, not to have a shower – which is what M.B. said she did – but to remove her makeup. The appellant acknowledged that he got a little frustrated waiting for M.S. as he wanted to return to the house before midnight. He denied having any sexual contact with M.B. while M.S. was upstairs. He denied having sex with M.B. that evening or at any time before she turned 16.
[20] The appellant denied ever purchasing alcohol or cigarettes for M.B. He acknowledged taking his daughter and M.B. to the movies and for a pedicure, and taking them to shop before Christmas in 2015. He explained that he did this as he thought it would assist in his efforts to repair the relationship with his daughter, which had been strained.
[21] According to the appellant, his sexual relationship with M.B. began after she turned 16 and after she sent him a picture of herself wearing sunglasses. On his account, he could see, in the reflection of her sunglasses in the photograph, a pornographic website on her computer. The photograph was captioned “I am legal now” (M.B. acknowledged the image and that she might have sent it, but denied it was to initiate sexual contact with the appellant). The appellant said he thought the picture was a joke and he showed it to his daughter. He said that, about 40 minutes after receipt of this message, M.B. wrote him and told him she liked him and asked if he wanted to hang out. M.B. started coming over and they, typically, either watched movies or went out for dinner.
[22] He acknowledged having a sexual relationship with M.B., but not until after she turned 16 in May 2016. He denied ever offering or providing alcohol or cigarettes in exchange for sex. He testified that he never owned or rented a home in Oshawa and that he was never at a home in Oshawa with M.B.
[23] Recognizing the significant age gap, the appellant described this relationship as “unconventional” and that, in hindsight, his was a terrible lapse in judgment. He explained that he was flattered by the attention of a younger woman. The relationship ended when he learned she was dating someone closer to her age. He acknowledged sending her angry and vulgar text messages. He said he did so because he believed she cheated on and lied to him.
Appellant’s daughter, M.S.
[24] M.S. is the appellant’s daughter. She was also one of M.B.’s closest friends. She confirmed, in large measure, the appellant’s testimony. She testified that the appellant bought M.B. a sweater (not underwear), on her behalf, for Christmas, and that he bought her a sweater and underwear. She also largely corroborated his evidence about the New Year’s Eve incident. For instance, she said neither she nor the appellant consumed alcohol, and that the plan was indeed for the two of them to watch movies. She testified that when M.B. arrived it was clear she had been drinking. She said she spoke to M.B. for a moment before going upstairs to, as the appellant said, take off her makeup. She did not have a shower. She testified that when she returned downstairs the appellant was wearing boots and a coat and was ready to go to the store. M.B. did not go with them and was not at the home when they returned.
[25] M.S. acknowledged having learned of the relationship between M.B. and her father after perusing M.B.’s phone, and to confronting and assaulting M.B. on August 15, 2016. M.S. was charged and ultimately pleaded guilty to assault.
Other Defence Witnesses
[26] The tenant who lived in the Brooklin apartment immediately before the appellant, testified. He said that while his lease expired on March 31, 2016, he moved out near the end of February or beginning of March. He recalled that, as he was moving his belongings from the unit, the landlord brought the appellant by for a showing.
[27] He also recalled that when he moved into the unit in 2013 the landlord allowed him to take possession “a day or two” before the commencement of the lease.
[28] While the jury was not advised who she was, the appellant’s parole officer testified. She said the appellant told her that he was moving into the Brooklin apartment on April 21, 2016. She visited him there on April 28, 2016, and observed that there was very little furniture in the unit.
DISCUSSION
Ground #1 – Did the trial judge err by failing to provide a “no probative value” instruction to the jury after the complainant’s outbursts?
[29] The appellant submits that the trial judge did not sufficiently address M.B.’s outbursts. Instead of simply cautioning the jury against placing too much emphasis on how she testified and directing them to not rely on it to conclude that the appellant is a “bad guy” and more likely to have committed an offence like this, the trial judge should have said that it was irrelevant and directed them to disregard it in its entirety.
[30] I think it important to, first, place these outbursts in their proper context. M.B. was a youthful witness, 18 years old at time of trial, testifying about events that occurred when she was 15 and 16. Upon my review of the record, it is fair to say that hers was a lengthy and vigorous cross-examination. She was, understandably, upset and emotional.
[31] While events like these are always regrettable, and require some intervention by the trial judge, a significant degree of deference is owed to their choice of remedy. To that end, consider what the trial judge actually did. First, he immediately excused the jury and sought counsel’s input. The appellant argued that a mistrial should be declared. He submitted that the outburst was irrelevant, had no probative value, and was highly prejudicial. The Crown submitted that it was admissible but urged the trial judge to give an instruction that cautioned the jury against placing undue reliance on the witness’s demeanour, and against engaging in propensity reasoning.
[32] Second, he dismissed the request for a mistrial.
[33] Third, after considering the position of each party, he had the jury return and provided this instruction:
You will recall, I’m sure, that before we broke for lunch you witnessed an outburst on the part of [M.B.] in which she expressed the opinion that [the appellant] is a, quote, “fucking creep.” Although I will be giving you further instructions at the end of the trial in relation to the assessment of a witness’s evidence, I want to say something about it now as a result of that incident. Do not jump to any conclusion, based entirely upon how any witness has testified. Giving evidence in a trial is not a common experience for most people. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values, and life experiences. There are simply too many variables to make the witness’s manner in the witness box, or in this case, the CCTV room, the only or most important factor in making your decision.
In particular, you must not use the opinion of [the appellant] expressed by [M.B.] to conclude or help you conclude that he is a person of bad character and, therefore likely committed the offences charged because of that bad character.
[34] This instruction, which was based on wording proposed by the Crown, was adequate in the circumstances. It addressed both the risks of undue reliance on a witness’s demeanour and propensity reasoning, which is where the mischief lay. Beyond that what we are really talking about is a risk that the emotional force of it was too much and would overwhelm the jury, which would in turn lead them to effectively ignore instructions on the law. First, this concern is unfounded. There was no reason to believe that the jury would have ignored instructions on the law on account of the outbursts. Second, if the concern was that the outbursts would unduly influence the jury’s attitude towards the accused, I would defer to the trial judge’s discretion and judgment because he was better positioned than I am now to assess the potential risks and what would best ameliorate against them. Short of the trial judge exercising his discretion in a way that is clearly wrong or based on an erroneous principle, they must be given considerable leeway to manage what can sometimes be very challenging proceedings: R. v. Chiasson, 2009 ONCA 789, 258 O.A.C. 50, at para. 14. Here, the trial judge was alive to the issues the outbursts raised, and the concerns of trial counsel, and then dealt with them in a measured and reasonable manner.
[35] The sufficiency of this instruction addresses the appellant’s argument that the jury should have been told to disregard the outbursts entirely. In other words, while it was open to the trial judge to provide a stronger instruction, the failure to do so, in the circumstances of this case, was not an error. This was the trial judge’s call to make, and he made it after recognizing the risks that arose from the outbursts and after seeking and receiving counsel’s input. I will note, as well, that this type of evidence can typically cut both ways as defence counsel will often seize upon such outbursts and rely on them during their final submissions to show that a witness has an animus against the accused.
[36] In any case, the appellant was not prejudiced by M.B.’s outbursts as the jury was sufficiently instructed on the limited use they could make of it. I would accordingly reject this ground of appeal.
Ground #2 – Did the trial judge err by permitting the Crown to lead a prior consistent statement and in not instructing the jury on its limited use?
[37] The appellant submits that the trial judge erred by allowing the jury to hear that M.B. disclosed what happened between her and the appellant to her father in April 2017. This, he submits, was a clear violation of the rule against oath helping as any motive to fabricate already existed and began either when M.S. learned of M.B.’s relationship with her father or when the physical altercation occurred, which was in August 2016, some eight months earlier. He also submits that, even if this disclosure was admissible, the trial judge erred in failing to give a limiting instruction on its prohibited and permissible uses. He argues that these errors warrant a new trial.
[38] Prior consistent statements are presumptively inadmissible: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. This is so for good reason. They are self-serving, typically lack probative value, and are by their very nature repetitive and redundant. In the normal course, they amount to an improper attempt to bolster a witness’s credibility. The rationale for excluding prior consistent statements is that repetition does not “enhance the value or truth of the testimony”: R. v. Ellard, 2009 SCC 27, [2009] SCC 27, at para. 31. However, there are exceptions: Stirling, at para. 5. For present purposes, the question is whether the trial judge properly admitted this evidence as a way for the Crown to rebut an allegation of recent fabrication.
[39] In Stirling, the Supreme Court held that prior consistent statements can be admitted to rebut an allegation that a witness has recently fabricated parts of their evidence. The allegation need not be expressly made. It is enough that the “apparent position of the opposing party is that there has been a prior contrivance”: Stirling, at para. 5, citing R. v. Evans, [1993] 2 S.C.R. 629, at p. 643. Furthermore, the alleged fabrication need not be recent. What matters is that an allegation, or suggestion, that the complaint is fabricated must have been made at some point after the event in question: see Stirling, at para. 5; R. v. O’Connor (1995), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-295.
[40] The trial judge failed to articulate the basis on which the prior consistent statement was admissible. However, he appears to have accepted the Crown’s argument that it should be admitted to rebut an allegation of recent fabrication. I say that, having regard to how the issue was raised at trial, and then resolved. First, the appellant objected to the admission of M.B.’s father’s testimony about M.B.’s disclosure as a prior consistent statement, on the basis that it was irrelevant. Second, in response to the appellant’s objection, the Crown argued that J.B.’s evidence about the timing of M.B.’s disclosure to him was relevant to rebut the allegation of fabrication. The Crown’s position was that, while a motivation to fabricate may have arisen when people first learned of M.B.’s relationship with the appellant, or when M.B. and M.S. had their fight – which the appellant says is why M.B.’s conversation with J.B. should not have been allowed – it was the culmination of events, and the fact that rumours continued to spread, that led M.B. to go to the police when she did.
[41] The trial judge also failed to provide any limiting instruction to the jury on the prior consistent statement. It is 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. That said, the failure to do so will not always amount to a reversible error. First, the adequacy of a trial judge’s instruction is to be assessed “in the context of the particular case on a functional basis”: R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 21. Second, this court has noted that a limiting instruction may be unnecessary where it is clear to the jury that the statement is not offered as proof of the underlying facts: Demetrius, at para. 22, citing R. v. G.M., [2000] O.J. No. 5007 (Ont. C.A.). In R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 80, Watt J. observed that the absence of a limiting instruction about the use of prior consistent statements is not always fatal, and he helpfully identified a number of relevant considerations:
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?
[42] I will consider each in turn. First, did the impugned statement extend beyond the mere fact of its making to include incriminatory details? Here is the exchange between the Crown and M.B.’s father:
Q. [D]id [M.B.] ever tell you about what happened between her and [the appellant]?
A. Yes.
Q. I don’t want to get into anything about what she told you, okay, that’s for her to have told the court. So, I don’t want to hear from you about what it was or words that she used. But my question for you is, that she told you about these events with [the appellant], when was it that she came out to you with this information?
A. Two years ago, almost to the day.
Q. Almost two years ago?
A. Yeah.
Q. Okay. So that would be, we are in 2019, we are in April of 2019?
A. Yes.
Q. So, April of 2017?
A. Yeah. In and around that area. Yes.
[43] This does not elicit anything beyond the fact and timing of the disclosure. Indeed, the Crown specifically avoided eliciting anything beyond that.
[44] Second, how many prior consistent statements were introduced? Just one. The exchange noted above, which sets it apart from cases relied upon by the appellant, in particular R. v. D.C., 2019 ONCA 442, where three witnesses testified about what the complainant told them and which, in each instance, “included substantive details of abuse”: at para. 25. There you had a clear risk that the jury would improperly view the statements as corroborative or confirmatory. That is simply not the case here.
[45] Third, who introduced the evidence? Without question the Crown elicited the evidence that there had been a prior disclosure.
[46] Fourth, did the Crown rely on M.B.’s disclosure for a prohibited purpose? To answer that question, one must consider what the Crown said about this in its closing address:
[M.B.] did not make up allegations of being assaulted sexually by [the appellant] just to get her ex-friends off her back.
She didn’t just go to the police in August of 2017 and make up allegations because she was being made fun of by her peers. It was time, and she was ready to talk about it. And you heard from both her and her father that she had told him about this relationship well in advance of going to the police.
This is the third piece of evidence that [the complainant’s father] assists you with. This wasn’t made up on August the 2nd when she went into the police station for the first time. She didn’t go to the police earlier, because, as she told you, she was afraid. She was afraid that nothing would happen, because she had seen other people in similar situations, and nothing had come of it. She was afraid of the very process of having to talk about it.
[47] This did not invite the jury to improperly use the evidence. To the contrary, the Crown relied on the timing of M.B.’s disclosure to her father to rebut the appellant’s allegation of recent fabrication. It was a fair argument to make, in light of the evidence that had been presented. At no point during this trial was the jury asked to rely on the prior consistent statement for the truth of its contents, or to bolster the complainant’s credibility through repetition.
[48] Consider also this exchange between defence counsel and M.B.:
Q. Okay. And after that, [M.S.] and [someone else] told other people, your peers, about the relationship, correct?
A. Correct.
Q. And that word got out about it, and it caused a lot of rumours to go around about you, correct?
A. Only the bad people realized it. Like, the people who actually heard it and had a brain thought it was wrong. So, yeah.
Q. Okay. But there were these, my point is just that there were these rumours and they caused you a lot of discomfort, a lot of pain, correct?
A. Yeah.
Q. And I will just show you, I am not, I will just show you one of those, one of the types of things that you heard. I am actually, I am not going to put it up on the screen because I don’t want to put it up on the screen unless you want me to refresh your memory. But there was a message, for example, from someone, one of your friends…
A. Yeah. Put it up on the screen.
Q. So, for example, this is [someone] saying:
“You used her dad for alcohol, you chose to be with him even while you had a fucking boyfriend and now you act like you are all innocent?”
Q. That was the type of thing that you heard, correct?
A. Correct.
Q. Okay. And you didn’t, you don’t like now it being portrayed, the relationship with [the appellant] after you turned 16, as something you chose, correct?
A. Correct.
Q. And actually, what prompted you to go to the police, I am going to suggest, these sorts of rumours and the things you were hearing, they drove you nuts, correct?
A. If I really want to protect my image I would.
Q. I am not sure what you mean…
A. I am…
Q. …by that.
A. …not embarrassed by what these people are saying about me. If I really wanted to put something out there about this guy, then I would. I am not worried about what these people are messaging me. I went to the police because it was, I was sick of getting these messages like it was…
Q. That’s was my next…
A. It didn’t drive me crazy. I was tired of hearing about this situation and not doing anything about it.
Q. Okay. So, what ultimately prompted you to go to the police, you had got a job at McDonald’s, correct?
A. Yes.
Q. And you would see your peers there, correct?
A. Yes.
Q. They knew about the relationship and they teased you, correct?
A. Incorrect.
Q. Okay. They said mean things to you like [someone] did, correct?
A. Not in McDonald’s, but, yeah.
Q. Okay. Fine. But you, they didn’t say it when you were at work but that day you went to the police you saw some of your peers, correct?
A. Correct.
Q. And you said, you know what, I can’t do it. Today is the day that I am going to the police, correct?
A. Correct.
[49] Defence counsel appears to be suggesting to M.B. that she went to the police when she did because she was about to encounter some of her peers at her place of work, who were spreading rumours about her, which is contrary to what the appellant now says, which is, because this was long after M.S. learned of the relationship, and their fight, that the disclosure to J.B. could not rebut his allegation that M.B. fabricated.
[50] Lastly, was any objection taken to the introduction of the prior consistent statement or to the failure to provide instructions limiting its use? While trial counsel for the appellant did object to M.B.’s father testifying about M.B.’s disclosure, counsel did not ask for a limiting instruction after the evidence was ruled admissible. No mid-trial instruction was sought. No such instruction in the final charge was sought. It was not discussed at all during the pre-charge conference.
[51] Except for the fact that it was the Crown who elicited the prior consistent statement, all factors point to a finding that there was no error, notwithstanding the absence of a limiting instruction.
[52] I would, therefore, reject this ground of appeal.
Ground #3 – Did the trial judge err in not correcting a Crown misstatement of the evidence in its closing address, about when the appellant moved into the Brooklin apartment?
[53] On the issue of when the appellant took possession of the Brooklin apartment, the appellant submits that the Crown misled the jury about the evidence, and invited speculation, by saying this during its closing address:
You heard from [the prior tenant] … when he signed his lease for the period of time starting October 1st, 2013. He signed in advance of that date, which is, in the Crown’s submission, the norm.
We know that that had to happen before [the prior tenant] moved out of the apartment, because once he did that, he never went back to it. So it had to be before the end of February, early March, which is that [the prior tenant’s] evidence was about when he moved out.
[The prior tenant] also told us that he moved out of the apartment in late February or the start of March. And once he moved out, as I already said, he did not go back. When he moved out all of his belongings, everything was moved out. There was nothing left there. It’s a reasonable inference for you to draw that the landlord extended the same courtesy to [the appellant] once [the prior tenant] was out of the apartment.
[54] The appellant contends that the Crown was attempting to have the jury draw the inference that he took possession of the Brooklin apartment in late February or early March – aligning it more closely with M.B.’s evidence about when she says they started having sex in that apartment – even though his lease did not begin until April 1, 2016.
[55] After defence counsel raised concerns about this invitation to speculate, the trial judge reminded the jury what [the prior tenant] actually said, relating it directly to the Crown’s closing by drawing a distinction between someone being allowed to move in “a day or two” before a lease begins, and a month before.
[56] The appellant says this was insufficient as there was no basis upon which the jury could conclude that he moved into the Brooklin apartment a month or more before the start date of the lease. He further submits that, even though the trial judge accurately stated what the evidence was, the Crown’s misstatement created a miscarriage of justice in that it reconciled a significant inconsistency in M.B.’s evidence on the core issue, which was when, apart from New Year’s Eve 2015, the sexual relationship began.
[57] The Crown argues that there was no misstatement. It asks that we closely examine what the Crown at trial actually said, which is as follows:
But if the first incident after New Year’s was the beginning of February, if we take her evidence here at trial as she recalls it, and after that she met him at the Brooklin apartment as she said in her statement about every two weeks, then once a week, then several times a week, the frequency increased for that part, gets us really close to the end of February when [the prior tenant] says that he left that apartment for good, and when you could infer that [the appellant] had access to it.
[58] It further submits that, even if the jury was improperly led to believe they could infer that the appellant moved in a month or more before the lease start date, the trial judge made clear in his charge what the evidence was, emphasizing the point by relating it directly to the impugned portion of the Crown’s closing submissions.
[59] To start, I would agree that the Crown went too far in asking the jury to draw an inference that, because a prior tenant was allowed to move in a couple of days early, the appellant might have moved in a month or so before his lease began. This was a wild stretch, as there is a vast difference between a landlord allowing a tenant to move in a day or two early, and letting a tenant move in a month early. However, while the Crown went too far in drawing the comparison, there was no misstatement of fact. That being the case, all the trial judge could do is what he in fact did do, which was to instruct the jury as follows:
[The prior tenant] testified that he had been the tenant at the Brooklin apartment before [the appellant]. He said that his tenancy expired on March 31, 2016. He said that he had moved out at the end of February or beginning of March, and that, as he was moving out, the landlord brought [the appellant] in to view the apartment.
In her closing argument, Crown counsel argued that the landlord had extended a courtesy to [the prior tenant] in September 2013 by allowing him to move into the apartment early, and that it would be reasonable to assume that he would have extended the same courtesy to [the appellant]. In considering this argument, you should take into consideration the fact that [the prior tenant] evidence was that the landlord had allowed him to move in “a day or two early”, that is a day or two before the commencement of his lease on October 1, 2013.
[60] With this, there can be no doubt that the jury knew what the evidence was. Apart from that, the Crown made a mistake by drawing an inapt comparison, and the trial judge fixed it. He fixed it promptly, and in a way that ensured the jury treated the evidence properly. As such, I would reject this ground of appeal.
FRESH EVIDENCE
[61] At trial, the appellant tendered his lease for the Brooklin apartment, which indicated that his tenancy began on April 1, 2016. The appellant testified that he moved into the apartment on April 12, 2016. The appellant now seeks to admit as fresh evidence his rent cheques for the Brooklin apartment, the first of which is dated June 1, 2016; a copy of his SOIRA address update; and an MTO abstract with an address update. The SOIRA notification indicates that he changed his address on April 18, 2016. According to his affidavit in support of the application, he was required to update his SOIRA address within seven days of moving or face criminal charges. The MTO abstract indicates that he changed his address on April 14, 2016.
[62] When determining whether to admit fresh evidence on appeal, the court must consider whether the “interests of justice” warrant reception, based on these questions from Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775:
i.) By due diligence, could the evidence have been adduced at trial?
ii.) Is the evidence relevant in the sense that it bears on a decisive or potentially decisive issue?
iii.) Is the evidence credible in the sense that it is reasonably capable of belief?
iv.) Is the evidence such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result?
[63] The Palmer criteria encompass three components: admissibility, cogency, and due diligence: Truscott (Re), 2007 ONCA 575, 83 O.R. (3d) 272, at para. 93. The due diligence component becomes important if the admissibility and cogency components are met: Truscott (Re), at para. 93. Although the absence of an adequate explanation for not producing material at trial will not necessarily lead to the exclusion of the evidence on appeal, the finality of trial verdicts would be rendered illusory and the integrity of the trial process undermined if evidence is routinely admitted on appeal that could have been adduced at trial: Truscott (Re), at paras. 101-102.
[64] The evidence of the SOIRA address update and the MTO abstract is clearly admissible, relevant to the issue of when the appellant moved into the Brooklin apartment, credible, and sufficiently probative that they might well have had an impact at trial, as they suggest the appellant moved into the Brooklin apartment in mid-April 2016. The rent cheques are not sufficiently probative, as the first cheque is dated June 1, 2016, well after the appellant’s lease began and when he testified that he moved into the apartment. However, to admit the evidence of the SOIRA address update and the MTO abstract, at this stage, would be to render the first prong of the test meaningless, and be tantamount to saying fresh evidence will, in every case, be admitted even if it was obviously relevant and easy to obtain at the time of trial.
[65] In support of his fresh evidence application, the appellant suggests in his affidavit that he did not think to secure these documents at or before trial because the issue of when he moved in arose “unexpectantly”. That makes little sense because it would have been well known to the appellant, long before trial, when and where M.B. alleged the sexual relationship began, which never aligned with when he says he moved into the Brooklin apartment. What he seems to be implying is that he believed at trial that the lease was a complete answer to the conflict in the evidence as to when he moved into the Brooklin apartment, but this does not explain why he only now recognizes that the SOIRA address change or MTO abstract would serve the same purpose, if not actually be more probative than the lease, given that they indicate later move-in dates.
[66] While the due diligence principle is not to be applied as strictly in criminal matters, here there was no diligence whatsoever and no good explanation for why these documents were not obtained and presented at trial.
[67] I would dismiss the appellant’s fresh evidence application.
CONCLUSION
[68] For these reasons, I would dismiss the appeal.
Released: March 28, 2022 “K.M.v.R.” “J. George J.A.” “I agree. K. van Rensburg J.A.” “I agree. I.V.B. Nordheimer J.A.”