COURT OF APPEAL FOR ONTARIO

DATE: 20000911

DOCKET: C31820

ROSENBERG, MACPHERSON AND SHARPE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

• and -

DANA LAWRENCE ANDREW
MCDONALD
Appellant

P. Andras Schreck
for the appellant

John McInnes
for the respondent

Heard: July 25, 2000

On appeal from the conviction by The Honourable Mr. Justice Paul Dilks dated September 4, 1998 and sentence imposed on November 25, 1998.

SHARPE J.A.:

[1] The appellant was tried before Dilks J. and a jury on charges of sexual assault and threatening serious bodily harm. He was convicted on both counts and sentenced to three years imprisonment for the sexual assault and one year concurrent for threatening. The principal grounds of appeal relate to the admissibility of similar fact evidence and the instructions given to the jury with respect to such evidence and evidence of other discreditable conduct. The appellant also complains of the instruction given with respect to evidence of prior consistent statements.

FACTS

(a) The Alleged Sexual Assault and Threat

[2] The 20 year old complainant knew the 27 year old appellant through a mutual friend, W.R., with whom she was romantically involved. The appellant often spent time with the complainant and W.R. The complainant and the appellant were friends and sometimes spoke on the phone in the evenings, but until the incident giving rise to these charges, they did not spend time alone together.

[3] On the evening of the alleged sexual assault, the appellant telephoned the complainant at her home and asked if he could come over to speak to her. She assumed he wanted to discuss the behaviour of W.R. who “was not acting like himself”. After the appellant arrived, the two chatted for a while. The complainant had been drinking earlier in the evening. She offered the appellant some wine, which he drank. According to the complainant, she had a soft drink. According to the appellant, she was drinking vodka.

[4] The complainant was seated on the sofa and the appellant was sitting on a chair about two feet away. After a while, the complainant moved to sit on the floor because her legs were cramped. According to the complainant, at this point the appellant approached her, and when she turned to put her drink on the table, he was right in front of her. He pushed her back by the shoulders and started unbuttoning her shorts. She told him “no”, and that she liked W.R. He asked her if she trusted him, and she said “yes”. He continued his advances, and again she said “no”. He took off her shorts and underwear and he took off his own clothes while straddled on top of her. She says that she was scared and shocked and said nothing. She tried to get up, but he pushed her down again. The appellant put on a condom and proceeded to rape her. According to the complainant, the appellant had been at her house for about 30 minutes when this happened. She did not ask the appellant to stop because she had already done so to no avail. The complainant later added that she tried to resist by scratching the appellant’s back.

[5] The appellant testified and gave a very different account. He said that the complainant fell over while reaching for her vodka bottle and he leaned over to help her up. At this point, the complainant began to laugh. They then looked at each other and began kissing. The appellant estimated that he had been at the complainant's house for three or four hours before sexual contact began. According to the appellant, after he and the complainant began kissing, "it just accumulated from there". He removed the complainant’s pants and put on a condom, which he always carried with him as a precaution. The complainant participated willingly and never said "no". He unequivocally denied forcing sex upon her. The appellant agreed that the complainant had left scratch marks on his back, but explained that they had not been inflicted as a sign of protest but, rather, as a sign of pleasure.

[6] After the sexual activity ended, the appellant and the complainant got up and put on their clothes. The complainant testified that she then told the appellant that she thought he should leave. He agreed. In her examination-in-chief, the complainant stated that the appellant then said, "I don't think you should tell anybody or something might happen". In cross-examination, she related his statement as "Don't tell anyone or something might happen to you". At the preliminary inquiry, she had testified that he had said "I don't think you should tell anybody because something is going to happen". According to the complainant, the appellant "seemed angry" when he said these words and she took them as a threat that he would hurt her if she told anybody. According to the appellant, he suggested that they keep their sexual activity between themselves because he did not want people to think badly of the complainant and thought that they might if they found out that she had had intercourse with him. The appellant left and never contacted the complainant again.

[7] The next day, the complainant told W.R. and some other friends about what had happened. One of the friends, S. C., became hysterical when she heard the complainant’s story. Both S. C. and another friend gave evidence at the trial of the complainant’s description of the sexual assault and threat. The group took the complainant to the hospital. No physical injuries were detected and the complainant was advised to go for counselling. The complainant did not follow this advice nor did she report the incident to the police until several months later. Her complaint to the police was prompted by threatening phone calls from a woman stating she was the appellant’s new girlfriend. This woman told the victim she would really find out what rape was if she continued to spread rumours that the appellant had raped her. According to the complainant, she did not go to the police sooner because the appellant had threatened her.

(b) Similar Fact Evidence and Evidence of Other Discreditable Conduct

[8] The trial Judge ruled that the Crown was permitted to call similar fact evidence in the form of testimony from S.C., the complainant’s friend and the appellant’s ex-girlfriend. S.C. testified as to the relationship she had had with the appellant that pre-dated the incident with the complainant forming the subject of the present charges. She testified that at the beginning of their relationship, but before they had engaged in sexual activity, she visited the appellant’s house on a Tuesday. According to her, while she was there the appellant "started hitting on" her but stopped when she told him that she did not want to have sex. She spent the entire day at the appellant's home. The appellant testified that the first time S.C. came to his house, she only stayed for a moment and they immediately left and went to a coffee shop together. While at the coffee shop, he passed a note to S.C. indicating that he wished to have sex with her. She declined. He asked to have sex with her over the next two days but she continued to decline.

[9] S.C. testified that the day following her first visit to the appellant’s home, a Wednesday, she returned to his home for a second visit after first meeting him at a coffee shop. They arrived at his house at some time before noon and went to his bedroom, where they sat on a couch. According to S.C., once they were in the bedroom the appellant "started kissing me and biting my neck and that sort of stuff". She tried to push him away. He then picked her up and carried her to the bed, where he continued kissing her. S.C. knew that he wanted to have sex, so she said "no" several times, but he persisted. She testified that the appellant laid on top of her, which prevented her from screaming or moving. She tried to push him off but was unable to do so. She "ended up having sex but I didn't really want it". The appellant lifted her skirt, removed her underwear, put on a condom, and had intercourse with her. Afterwards, S.C. remained at the appellant’s home until the evening, when she left to go home. S.C. testified that she did not suffer any physical injuries and did not seek medical attention.

[10] The appellant’s version was that the first time he and S.C. had intercourse was on the Friday of the week that they began their relationship. While they were together in his bedroom, he began "kissing her, hugging her, holding her, caressing her". He began to undo her blouse, following which the two of them undressed each other. According to the appellant, he then asked her if she wished to have sex. She initially said "no", so he stopped. They then sat down together and talked. According to the appellant, he told S.C. that he would like to have sex with her but did not pressure her. He offered to take her home. He says that S.C. responded that she did not want to go home and had decided that she would like to have sex and that they proceeded to have intercourse.

(c) The Similar Fact Witness – Continuing Relationship With the Appellant

[11] S.C. continued to have a relationship with the appellant for several weeks following the alleged rape and had intercourse with him on 10 or 15 further occasions. She did not tell anybody that the appellant had raped her until after she had heard the allegations made by the complainant. According to S.C., she continued her relationship with the appellant and remained silent because she feared him. Her fear was based on several incidents. She testified that the appellant had told her that he had beaten people up. After the alleged rape, he said "If you tell anybody I'll kill you". She testified that she believed this threat because the appellant had told her that he was in a gang and was in the habit of carrying a knife. On another occasion, he showed her a handgun that belonged to him. She further testified that some time after the rape, the appellant told her that he intended to kill her parents because they were interfering in the relationship he was having with her.

[12] In re-examination, S.C. put forward an additional reason why she feared the appellant:

Q. Why did you continue to have sex with him?

A. Well, he did mention one time during the time that I was with him that he did tell me that he raped somebody else. He told me he raped this girl named Tammy. Apparently, he raped her because -- I don’t know if I’m allowed to say this but she was being a -- she was being a --.

Q. Just stop there. The question was why did you continue having sex with him?

A. Because I was scared and I didn’t want him hurting me or anything.

[13] The appellant denied making any threats to S.C. and denied owning a gun. In the weeks following the alleged rape, S.C. regularly saw the appellant on Fridays, Saturdays and Sundays, when she either visited his house or met him at a coffee shop. She sometimes ate dinner at his home. The appellant’s mother recalled S.C. visiting the house and observed that S.C. and the appellant appeared to be very affectionate towards each other. Just before the relationship ended, S.C. and the appellant exchanged gifts. He gave her a necklace. She gave the appellant an anklet with her name engraved on it. According to S.C., she gave the appellant this gift voluntarily. The anklet was one of her "favourite things”. The appellant and S.C. eventually broke up because S.C.’s parents did not like the appellant.

[14] S.C. testified that she did not report the alleged rape to anyone because she was scared, embarrassed and humiliated. She reported her allegations to the police after the complainant went to the police. According to S.C., she asked the police to charge the appellant, but the police dissuaded her from doing so.

ISSUES

[15] The appellant raises the following issues on this appeal:

1. Did the trial Judge err by admitting the similar fact evidence?

2. Did the trial Judge err in his instructions to the jury respecting the similar fact evidence?

3. Did the trial Judge err by failing to give a limiting instruction respecting evidence of discreditable conduct apart from the similar fact evidence?

4. Did the trial Judge err by instructing the jury that the complainant’s prior consistent statements were admissible for the truth of their contents?

5. Did the trial Judge err in his instructions on the offence of threatening bodily harm?

6. The appellant also seeks leave to appeal his sentence.

ANALYSIS

Issue 1. Did the trial judge err by admitting the similar fact evidence?

[16] The key issue for the jury was whether or not the complainant consented to have sex with the appellant. There was no voir dire as to the similar fact evidence, nor did Crown counsel offer the trial judge a comprehensive account of what S.C.’s evidence would be. The trial judge’s ruling to admit the evidence was based on the following facts as described in his ruling:

The proposed evidence is that of S.C., who, according to counsel for the Crown, will say that in 1995, at the time of the March school break, she and the accused were seeing each other, that at his request she attended his residence where they talked and then suddenly and without warning he picked her up, put her on a bed and tried to have sex with her. She said no on at least two occasions but he kept saying yes. She finally gave in because she was afraid that he would beat her if she did not submit. He had been threatening to kill her parents and she knew that he had a gun. Afterwards he said that if you tell anyone I will kill you. Prior to the sexual intercourse, he put on a condom.

[17] The appellant’s trial counsel relied on the decision of the Supreme Court of Canada in R. v. Clermont (1986), 1986 26 (SCC), 29 C.C.C. (3d) 105 (S.C.C.) at 108 where Lamer J. stated:

The fact that another complainant had not consented is of no relevance as to whether [the complainant] consented or not…. Though very relevant, evidence of an earlier rape is not admissible when its only probative value is to establish that the accused is someone capable of disregarding the absence of consent by his victim, and therefore he should not be believed when he says that she did consent or at least that he honestly believed that she had.

[18] The trial judge rejected the submission that Clermont was determinative and distinguished it as representing a pigeon-holing approach, “a school of thought that is no longer in vogue” in view of more recent pronouncements of the Supreme Court and this court which place greater emphasis on a balancing process. The trial judge found that there were “great similarities between the two incidents”. He noted the following four points:

In my view the proposed evidence shows great similarities between the two incidents, firstly in that both complainants were acquainted with the accused, [the complaintant] by friendship and [S.C.] as the accused’s girlfriend at the time. Secondly, after some initial discussion the accused forces himself on the complainant in question and persists despite the fact that the complainant says no at least twice, thus demonstrating a domination that will not take no for an answer. Thirdly, just before the actual sexual intercourse, he puts on a condom, a fact that might well be put forward, of course, to support a defence based on consent normally. If, however, the jury should believe that [S.C.’s] case was one of forced sex, they may use the same fact as tending to show that the sex was non-consensual in the case of [the complainant] as well. Four, in each case the accused is alleged to have threatened the complainant not to tell anyone or that something bad would happen presumably to the complainant. In my view, the jury may be assisted by hearing this evidence in that it is relevant to the issue of the complainant's credibility and to the issue of consent.

[19] The trial judge concluded that the evidence would assist the jury in assessing the credibility of the complainant and in deciding the issue of consent. While he agreed that the evidence was “of course highly prejudicial to the accused” he was persuaded that its prejudicial effect was sufficiently outweighed by its probative value, that it ought to be received “with appropriate limiting instructions given to the jury as a safeguard.”

[20] It is the appellant’s contention that the similar fact evidence ought not to have been admitted as it amounted to nothing more than evidence of his propensity to commit sexual assault and that it had little or no probative value in relation to the issue of consent. The appellant submits that the trial judge erred in refusing to follow R. v. Clermont, supra as establishing that similar fact evidence is not admissible where the sole issue is consent. The appellant also submits that this evidence should not be admitted on the basis of the balancing approach, enunciated in R. v. B(L.); R. v. G. (M.A.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.) and most recently by this court in R. v. Handy (2000), 2000 5707 (ON CA), 48 O.R. (3d) 257 (C.A.). The appellant points out that S.C.’s evidence did not unfold in the manner predicted by Crown counsel and also contends that the trial judge paid insufficient heed to the possibility of collusion or tainting of S.C.’s evidence in view of its nature and the time S.C. first complained of being sexually assaulted by the appellant.

[21] The respondent submits that there was a significant similarity between the two incidents sufficient to establish a pattern of conduct “that tended to rebut the inference of implausibility the jury might otherwise draw about the complainant’s account, and in particular, the use of a condom.” To the extent the evidence showed propensity, the respondent submits that it showed a propensity to commit the offence in the particular manner in which the complainant says it was committed, and that hence, the evidence was admissible. The respondent submits that the possibility of collusion is but one factor to be considered and that it cannot be assumed from the trial judge’s failure to mention it that he failed to advert to it when deciding to admit the evidence.

[22] As stated by McLachlin J. in R. v. B.(C.R.) (1990), 1990 142 (SCC), 55 C.C.C.(3d) 1 (S.C.C.) at 21, “the starting point for determining whether similar fact evidence is admissible is the general exclusionary rule against the reception of evidence of disposition or character…” The basic premise underlying the general exclusionary rule is that the accused is to be tried for the specific offence with which he or she has been charged, and that evidence that does no more than show a general disposition or propensity to commit criminal acts is inadmissible. As explained by Sopinka J. in R. v. B(C.R.), supra at 8, the “policy of the law is wholly against” the very process of reasoning one would naturally expect a jury to follow from evidence of bad character or disposition. A jury would be likely “to conclude that a thief has stolen, a violent man has assaulted and a paedophile has engaged in paedophilic acts.” On the other hand, the exclusion of propensity evidence is not absolute and, again to quote McLachlin J. in R. v. B(C.R.), supra at 22, evidence of propensity “may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.”

[23] There can be little doubt that, as noted by the trial judge, in recent years the courts have been more willing than in the past to find that the probative value of similar fact evidence outweighs its prejudicial effect. However, that does not detract from the need for careful scrutiny of similar fact evidence with a view to determining whether it does have exceptional probative value that outweighs its prejudicial effect. In R. v. Handy, supra and R. v. B.(L.), supra at 490, Charron J.A. elaborated a helpful analytic approach:

The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters:

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?

2. If so, is the proposed evidence relevant and material?

3. If relevant and material, is the proposed evidence discreditable of the accused?

4. If discreditable, does its probative value outweigh its prejudicial effect?

[24] On the facts of the present case, there is no difficulty with the first and third factors. The conduct was that of the appellant and it was certainly discreditable of him. Nor, in my view, can serious issue be taken on the second factor, whether the evidence of S.C. was relevant and material to the issue of consent. The threshold for relevance and materiality is not high: see R. v. B. (L.), supra at 492 and Handy, supra at 268, quoting Paciocco and Stuesser, Essentials of Canadian Law: The Law of Evidence (1996), at p. 19, “It is relevant ‘where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely that that proposition would appear to be in the absence of that evidence.’” In my view, evidence that the appellant sexually assaulted and threatened S.C. in the circumstances described in her evidence would, as a matter of logic and human experience, make it more likely that he sexually assaulted and threatened the complainant.

[25] The real issue is whether the probative value of the evidence of S.C. outweighed its prejudicial effect. Here again, R. v. B.(L.), supra at 494, provides a useful analytic framework:

In assessing the probative value of the proposed evidence, consideration should be given to such matters as:

(i) the strength of the evidence;

(ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and

(iii) the extent to which the matters it tends to prove are at issue in the proceedings.

In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as:

(i) how discreditable it is;

(ii) the extent to which it may support an inference of guilt based solely on bad character;

(iii) the extent to which it may confuse issues; and

(iv) the accused’s ability to respond to it.

[26] The first factor to consider in assessing the probative value is the strength of the evidence of S.C. The appellant denied S.C.’s version of the alleged sexual assault and there were elements of S.C.’s story that raised an issue as to her credibility. Among these was the fact she not only continued her relationship with the appellant after the alleged assault; she also continued to have sexual relations with him. There was evidence that the two had, what appeared to be, an amicable relationship that included the exchange of gifts. I am in no position to determine whether or not S.C. was telling the truth. It may well be that, in the end, the factors I have mentioned would not necessarily affect her credibility. They are, however, matters that could be legitimately pursued in assessing the truth of her evidence, and accordingly, they do diminish the strength of her evidence.

[27] Another significant factor in relation to the strength of the evidence was the fact that it was only after her friend, the complainant, made her allegation that S.C. alleged that the appellant had also sexually assaulted her. As noted in R. v. B. (L.), supra and in R. v. Arp, (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.) at 344, the probative value of similar fact evidence lies in the “the objective improbability of coincidence”. It is the improbability of witnesses giving accounts of significantly similar events unless those events actually occurred that gives similar fact evidence its probative force. Where there is the possibility of collusion or tainting of evidence because the witnesses have not come forward independently, the similar fact evidence is robbed of much of its probative force. In the end, the issue of collusion is one for the trier of fact and the possibility of collusion does not require the trial judge to exclude the evidence: see R. v. B.(L.), at 496-7, reviewing R. v. Burke (1996), 1996 229 (SCC), 105 C.C.C. (3d) 205 (S.C.C.). It is, however, a factor to be taken into account in determining whether the evidence should be admitted: see R. v. Handy, supra at 273. In view of the nature of S.C.’s on-going sexual relationship with the appellant after their initial sexual encounter, there was a significant possibility that her evidence with respect to that first encounter was tainted by her involvement with the complainant at the time the complainant first made her allegation against the appellant. The possibility of collusion or the tainting of S.C.’s evidence was not mentioned by the trial judge in his ruling nor did he refer to the issue in his instructions to the jury. In my view, it was an issue that should have been considered in assessing the similar fact evidence.

[28] For these reasons, I conclude that consideration of the strength of the evidence of S.C. shows that it had limited probative value.

[29] The second factor in relation to probative value is the extent to which the proposed evidence supports the inference, a matter that often turns on the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge. In his ruling, the trial judge referred to a number of similarities between the assault described by the complainant and that described by S.C. As I have noted, the trial judge made that determination on the basis of a brief outline by Crown counsel of S.C.’s proposed evidence. In the end, as the evidence actually unfolded, there was some similarity between the two alleged assaults, but the evidence hardly shows a pattern or distinctive means of committing the offence of sexual assault. While the accounts of the complainant and S.C. bore the similarities noted by the trial judge in his ruling, there were also significant differences. In particular, the alleged assault on S.C. occurred at a time when the appellant and S.C. were apparently developing a romantic relationship, while there was no such prior involvement between the appellant and the complainant. Following the alleged assault on the complainant, the appellant did not contact her further, whereas the appellant and S.C. maintained a sexual relationship for some time. Indeed, if S.C.’s evidence were accepted, the appellant continued to sexually assault her by virtue of his threats over an extended period of time. In my view, the similarity between the alleged prior misconduct and the conduct forming the subject-matter of the charge was not particularly strong or striking. If accepted by the jury, the evidence of S.C. would show little more than that the appellant was callous in his sexual habits and indifferent to the consent of his sexual partners. This is no more than propensity evidence.

[30] The third factor in assessing the probative value of the evidence is the extent to which it tends to prove a matter at issue. The issue of the complainant’s consent was the sole issue at trial and to the extent the evidence of S.C. tended to support the complainant’s evidence, admissibility would be favoured. However, for the reasons I have given, the evidence of S.C. did not lend significant support to the complainant’s evidence.

[31] Turning to the question of prejudicial effect, the first factor is the extent to which the proposed evidence is discreditable. There can be little question that the evidence of S.C. was highly discreditable of the appellant. Indeed, as the evidence unfolded at trial, it was significantly more discreditable than would have been suggested by Crown counsel’s summary when the trial judge made his ruling. In the end, S.C. was alleging that in addition to the first assault, there were 10 or 15 subsequent incidents of sexual intercourse between her and the appellant, all of which were non-consensual and coerced by his threats of harm to her and her family.

[32] The second consideration is the extent to which the evidence may support an inference of guilt based solely on bad character. In my view, consideration of this factor weighs heavily against admissibility. For the reasons given above, the evidence of S.C. was of little probative value. In the end, it amounted to little more that pure propensity evidence. It presented the appellant as a person who was callous and abusive in his sexual behaviour and indifferent to the consent of his partners. In view of the other factors I have mentioned, such evidence posed a significant risk that the jury would be lead to draw an inference of guilt based solely on bad character.

[33] The third factor is the extent to which the similar fact evidence might confuse issues. In my view, the evidence of S.C. could and did confuse the issues for trial. As I have already noted, her evidence amounted to an allegation that the appellant had sexually assaulted her 10 or 15 times over an extended period, had a gun, carried a knife and had raped another woman named Tammy. The similar fact evidence raised issues that were, if anything, more complex and difficult to try than the actual charge that the appellant faced. Introduction of this evidence posed a significant risk that the jury would be distracted from the actual issues raised by the charges against the appellant.

[34] The fourth factor is the accused’s ability to respond to the similar fact evidence. In my view, this factor also weighs against admissibility. The evidence of S.C. was highly contentious and it involved allegations far more complex and more serious than the actual charges the accused faced. To be called upon to face those serious allegations in the context of the specific charges he did face was highly prejudicial.

[35] I conclude that the similar fact evidence had little probative value in relation to the key issue of whether the complainant consented and that any probative value it had was outweighed by its prejudicial effect. In the end, the similar fact evidence amounted to no more than evidence of the appellant’s propensity to commit sexual assault and accordingly, it should not have been admitted.

[36] In fairness to the trial judge, I would note that many of the points that have lead me to conclude that the evidence ought not to have been admitted would not have been apparent from the very brief summary of the S.C.’s evidence offered by Crown counsel at the time the trial judge made his ruling.

[37] I would note, finally, that I do not accept the contention advanced by the appellant at trial and, to a lesser extent, before this court on appeal, that R .v Clermont, supra, stands for the proposition that similar fact evidence can never be admitted where the sole issue on a charge of sexual assault is the complainant’s consent. The short judgment of Lamer J. must be read in the light of the decision of the Quebec Court of Appeal that was upheld: Clermont v. R. (1985), 1985 6006 (QC CA), 46 C.R. (3d) 68. As in R. v. Handy, supra, where the sole issue was also consent, the Quebec Court of Appeal engaged in a careful assessment of the probative value of the evidence weighed against its prejudicial effect.

[38] For the foregoing reasons, I conclude that the similar fact evidence ought not to have been admitted. As the similar fact evidence was gravely prejudicial to the appellant, I am of the view that on this ground alone, the convictions must be set aside and a new trial ordered.

Issue 2. Did the trial Judge err in his instructions to the jury respecting the similar fact evidence?

[39] My conclusion with respect to the admissibility of the similar fact evidence provides a sufficient basis to order a new trial and accordingly, it is not necessary to decide whether or not the trial judge’s instructions to the jury respecting similar fact evidence would, had the evidence been admissible, constitute reversible error. However, for the sake of completeness, I offer the following observations on the point.

[40] The trial judge offered the jury a mid-trial instruction on the use it could make of S.C.’s evidence in the following terms:

Ladies and Gentlemen, you’re about to hear evidence that the accused may have engaged in certain activities similar to those alleged in this case. I want to make it very clear that such evidence of past similar conduct can be used by you only for a limited purpose. This evidence is before you only in relation to the credibility of the complainant in this case … to the issue of whether the sexual activity she has described was with or without her consent and as well to indicate that there is a pattern or system to the conduct of the accused.

Ultimately you will have to decide on the basis of all the evidence that you hear, including the evidence that you are about to hear, as to whether the Crown has proved beyond a reasonable doubt that the sexual activity that we have heard described between [the complainant] and the accused took place without [the complainant’s] consent.

What you must not do, however, is use the evidence that you're about to hear to show that because the accused may have done other things that are wrong, if indeed you find that to be the case, that it is likely that he did something wrong in this case. This you simply must not do. The evidence may only be used, as I've said, if you wish to use it at all, on the question of credibility and consent and pattern. [Emphasis added.]

[41] In his final instructions to the jury, the trial judge gave the following instruction:

Let me remind you of the similarities between the two events as related by the two young women in question. First of all, both were young and vulnerable women with whom the accused was just starting a relationship. In [the complainant’s] case, she was a friend, and in [S. C.’s] case she described herself as a girlfriend. Secondly, after some minutes spent talking, the accused forces himself on the girl and persists despite the fact that she says no at least twice. Thirdly, just before the actual sexual intercourse, he puts on a condom. Fourth, the accused threatens harm if the girl tells.

You may use the testimony of [S.C.], if you choose to accept it, only for two purposes should you elect to do so. First of all, to bolster the credibility of [the complainant], and secondly, to show a pattern of behaviour on the part of the accused which may suggest that the sexual intercourse was forced, that is to say non-consensual. What you must not do is conclude that because the accused sexually assaulted a girl previously, if you find that to be the case, that probably he assaulted [the complainant]. This you must simply not do. [Emphasis added.]

[42] This instruction may be contrasted with that given in relation to the appellant’s criminal record for trafficking in marijuana where the trial judge told the jury quite clearly that the law did not permit an inference of guilt to be drawn from propensity to commit crimes, and clearly explained the use that could be made of the evidence:

You must not conclude that because he has been convicted of another crime in the past he is disposed to or has a propensity to commit further crimes. The law simply does not permit you to do so. You can only consider the prior conviction, as I said, in deciding the credibility of the accused as a witness …

[43] The trial judge’s instruction on the use of similar fact evidence should also be read in light of the fact that in his closing address to the jury, Crown counsel made much of the similar fact evidence, arguing that it showed that that appellant was “the type of person that keeps his victims quiet” with threats, and that he had a bad “attitude” with regard to his relationships with women.

[44] In R. v. D.(L.E.) (1989), 1989 74 (SCC), 50 C.C.C. (3d) 142 (S.C.C.) at 161-2, Sopinka J. outlined the dangers that arise from the admission of similar fact evidence and outlined the type of instruction that ought to be given to minimize those risks:

The inherent prejudicial effect of similar fact evidence may be felt by a jury in three main ways. The first is that the jury, if it accepts that the accused committed the prior "bad acts", may therefore assume that the accused is a "bad person" who is likely to be guilty of the offence charged. As McLachlin J.A. noted at p. 399 in the case at bar [in the British Columbia Court of Appeal], this assumption might raise.“ . . in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational dispassionate analysis upon which the criminal process should rest”. The second effect on the jury might be a tendency for the jury to punish the accused for past misconduct by finding that accused guilty of the offence charged. The third danger is that the jury might become confused as it concentrates on resolving whether the accused actually committed the similar acts. The jury members’ attention is deflected from the main purpose of their deliberations which is the transaction charged. Having resolved the first matter, there is a danger that they will substitute their verdict on that matter for their verdict on the issue which they are in fact trying.

In this case, the trial judge warned the jury on a number of occasions that the appellant was not on trial for the prior misconduct alleged, but only for the alleged incidents of July, 1985. This warning was, however, accompanied by a detailed recitation of the prior misconduct alleged against the appellant. The warning may still have gone some way to minimize the second prejudicial effect discussed above, but it did nothing to minimize the first and third dangers noted.

In a case in which similar fact evidence is admitted, the trial judge should charge the jury in a manner that will minimize as far as possible the dangers referred to above. The jury should be instructed that if it accepts the evidence of the similar acts, that evidence is relevant for the limited purpose for which it was admitted. The jury must be specifically warned that it is not to rely on that evidence as proof that the accused is the sort of person who would commit the offence charged and on that basis infer that the accused is, in fact, guilty of the offence charged. [Emphasis added.]

[45] The requirement that the jury must be told not to rely on the evidence as proof that the accused is the “the sort of person” to commit the offence charged was reiterated by Iacobucci J. in R. v. B.(F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 (S.C.C.) at 138-9.

[46] In both R. v. D.(L.E.) and R. v. B.(F.F.), the trial judge had failed to give any limiting instruction, whereas in the case at bar, the trial judge did address the issue. However, in doing so, he did not explicitly instruct the jury that it could not rely on the similar fact evidence as proof that the accused was “the sort of person” to commit the offence charged. In my view, he ought to have done so. The essential problem posed by similar fact evidence is the risk it poses that the jury will convict on evidence of mere propensity. Such reasoning is natural and logical for the ordinary person, yet it is forbidden by the law. The jury should be so instructed in the clearest possible terms. In my respectful view, the jury would not necessarily get this essential message from the trial judge’s instruction, quoted above. While the trial judge’s mid-trial instruction came closer to the mark than his final instruction, at no time did he clearly instruct the jury not to engage in propensity reasoning on the basis of the similar fact evidence. The language suggested by the Supreme Court of Canada – not to find guilt because the accused is “the sort of person” to commit the offence – is simple, direct, readily understood and it ought to be used.

Issue 3. Did the trial Judge err by failing to give a limiting instruction respecting evidence of discreditable conduct apart from the similar fact evidence?

[47] In addition to the similar fact evidence, the jury heard from S.C. evidence of other discreditable conduct alleged to have been committed by the appellant. S.C. testified that:

(1) The appellant had told her that he had beaten people up.

(2) The appellant was a member of a gang.

(3) The appellant carried a knife.

(4) The appellant owned a gun.

(5) The appellant claimed to have raped a woman named Tammy.

[48] This evidence may well have been admissible to explain the similar fact witness’s state of mind, but it was not admissible for any other purpose. The trial judge did not give a limiting instruction with respect to this evidence. He ought to have done so: see R. v. B.(F.F.), supra. In my view, the failure to give a limiting instruction with respect to this evidence, in particular, the evidence that the appellant had committed yet another rape, compounded the problem I have already identified with respect to the admission of the similar fact evidence and the very significant danger that the jury might have convicted the appellant on the basis of evidence of bad character and propensity.

Issue 4. Did the trial Judge err by instructing the jury that the complainant’s prior consistent statements were admissible for the truth of their contents?

[49] The jury heard evidence from S.C. and another witness that the day after the alleged assault, the complainant told her friends that the appellant had raped her. This evidence appears to have been admitted because the defence had alleged that the complainant’s account was fabricated. The appellant’s counsel did not object to the evidence being admitted, and indeed appears that appellant's counsel made a tactical decision to acquiesce in its admission as there were discrepancies between the prior statement and the complainant’s evidence at trial.

[50] It is well-established that an allegation of mere fabrication does not create an exception to the rule prohibiting prior consistent statements. There must be an allegation of recent fabrication: R. v. Henderson (1999), 1999 2358 (ON CA), 134 C.C.C. (3d) 131 (Ont. C.A.) at 147-8. There was nothing in defence counsel’s cross-examination of the complainant that could be construed as an allegation of recent fabrication. Rather, the defence position was that the complainant fabricated her account immediately after having intercourse with the appellant.

[51] In his charge to the Jury, the trial Judge instructed the jury as follows:

Evidence of what [the complainant] said to third persons shortly after the alleged assault is not normally admissible because it offends the rule against hearsay evidence. But here that evidence has been tendered in order to rebut or answer an allegation by the defence that she recently fabricated her story of no consent. So the fact that she told people shortly after the event of what happened, is some evidence that you may, if you accept it, may assist you in deciding that she had not recently fabricated the story.

[52] There are two problems with this instruction. In the first place, there was no allegation of recent fabrication. Second, whatever the basis for the evidence, the trial judge was required to give a limiting instruction as explained by Finlayson J.A. in R. v. F.(J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.) at 476:

In all cases where the evidence is admitted under the rubric of prior consistent statements, the trial judge is obliged to instruct the jury as to the limited value of the evidence. …the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed. [Emphasis added.]

[53] See also R. v. Henderson, supra. Rather than give a limiting instruction, the trial Judge told the jury that they could use the prior statements to confirm the truth of the complainant’s testimony. Again, in view of the conclusion I have reached with respect to the similar fact evidence, it is not necessary to consider whether, standing on its own in the context of this case, this error would warrant setting aside the convictions.

Issue 5. Did the trial Judge err in his instructions on the offence of threatening bodily harm?

[54] The appellant submits that the words relied on as constituting a threat were ambiguous and that in order to interpret them as a threat, the jury would first have to find that there had been a sexual assault. It is submitted that the trial judge failed to do so, that the following extract from the trial judge’s instructions invited the jury to engage in circular reasoning:

Two further points. First of all, it seems to me reasonable that if you accept the complainant’s evidence that the accused was angry when he spoke those words, it might indeed suggest that the words were threats rather than merely constituting a friendly suggestion. And it might also assist you in determining whether or not the sexual intercourse was consensual. Having said that, while it is, of course, strictly up to you, you might agree that it is unlikely that there could be a threatening unless there had been a sexual assault to give rise to the threat. In other words, if the sexual activity was consensual, it is hard to see what need there would have been to utter threats. [Emphasis added.]

[55] In my view, this point is without merit. The facts underlying the two charges were interwoven and I can see no reason why it was inappropriate for the jury to consider all of the evidence on both charges. If the jury found that the appellant had uttered a threat following the sexual activity, the fact of the threat could well shed light on the nature of the sexual activity and, in particular, whether or not is was consensual.

Issue 6. Sentence Appeal

[56] As I have concluded that a new trial is required, it is unnecessary for me to consider the sentence appeal.

CONCLUSION

[57] For the foregoing reasons, I would allow the appeal, set aside the convictions and order a new trial.

(signed) “Robert J. Sharpe J.A.”

(signed) “I agree M. Rosenberg J.A.”

(signed) “I agree J. C. MacPherson J.A.”

Released: September 11, 2000