COURT OF APPEAL FOR ONTARIO
DATE: 20000218
DOCKET: C28544
COURT OF APPEAL FOR ONTARIO
ABELLA, ROSENBERG AND MACPHERSON JJ.A.
B E T W E E N : )
)
HER MAJESTY THE QUEEN ) Philip Downes
) for the respondent
(Respondent) )
)
and )
)
E. S. ) Peter Lindsay
) for the appellant
(Appellant) )
)
) Heard: January 20, 2000
On appeal from conviction by Speyer J. with a jury, dated
September 26, 1997.
MACPHERSON J.A.:
Introduction
[1] The appellant was charged with committing three criminal
offences – indecent assault and sexual assault against a male
complainant, and sexual assault against a female complainant.
The appellant pleaded not guilty and was tried by Speyer J.
sitting with a jury. The Crown called three witnesses and the
defence called four witnesses, including the appellant. On
September 26, 1997, the appellant was convicted on all counts.
On November 10, 1997, Speyer J. imposed a sentence of 3-1/2 years
imprisonment. The appellant appeals against conviction only.
A. Factual Background
[2] From 1981 to 1983, the appellant lived with LG and her two
sons, PG and TG. It was alleged at trial that during this time
the appellant forced PG to fondle him and perform oral sex. PG
was eight to ten years old at the time.
[3] From 1986 to 1993, the appellant lived with BH and her
daughter, RH. During this time, it was alleged that the
appellant fondled and had sexual intercourse with RH who was
eight to sixteen years old.
[4] LG and BH are sisters. They had not spoken in years because
of animosity which arose as a result of BH’s relationship with
the appellant.
[5] In October 1994, the appellant and BH were involved in a
custody battle for the three young children they had together
between 1986 and 1993. A hearing was scheduled for October 18 of
that year. BH contacted LG and asked her and members of her
family to swear affidavits that BH could use in the custody
dispute. LG agreed to help. BH drove to Niagara Falls to bring
LG and members of her family back to Toronto so that they could
swear their affidavits in the custody litigation. According to
PG, it was on Monday, October 17, 1994 in Niagara Falls that he
first disclosed to anyone that he had been sexually assaulted.
He told his mother and his aunt that he had been sexually
assaulted by the appellant, but he did not provide the details.
On October 17, 1994, PG went to BH’s family lawyer and swore an
affidavit outlining the sexual abuse. On October 20, 1994, he
reported the incidents to the police.
[6] Sometime around October 17, 1994, RH became aware of her
cousin PG’s allegation about the appellant’s sexual assault on
him. The timing and the circumstances of RH’s knowledge were the
subject of much testimony, including conflicting testimony, at
the trial. What is clear, however, is that on October 19, 1994,
RH went to the police and reported that the appellant had also
sexually assaulted her.
[7] It was the defence position at trial that both PG and RH
fabricated their allegations of sexual assault. The reason for
the fabrication was to assist BH, PG’s aunt and RH’s mother, in
her custody dispute with the appellant.
B. Issues
[8] The appellant contends that the trial judge made four
errors, one in the jury selection process, one relating to a
ruling during the trial, and two relating to his jury charge.
The four alleged errors, in chronological order, can be stated in
this fashion:
(1) the trial judge erred in not allowing the defence to make an
offence-based challenge for cause of the jury;
(2) the trial judge erred in refusing to sever the count in the
indictment relating to the complainant RH from the two counts
involving the complainant PG, when the relevant incidents
occurred at different times and in different places and did not
constitute similar fact evidence;
(3) the trial judge erred in not sufficiently charging the jury
on the issue of similar fact evidence; and
(4) the trial judge erred in refusing to instruct the jury that
it could draw an adverse inference from the failure of the Crown
to call several witnesses who might have testified about the
timing and circumstances of RH’s disclosure of the appellant’s
alleged sexual assaults on her.
C. Analysis
(1) Challenge for Cause
[9] The appellant filed his Notice of Appeal before this court
rendered its decision in R. v. K.(A.) (1999), 1999 3793 (ON CA), 137 C.C.C. (3d) 225
(Ont. C.A.). In that case, this court held that the trial judge
did not err in refusing to permit a challenge for cause on the
basis that the accused was charged with sexual offences in
relation to children.
[10] In my view, the relevant facts in this appeal are virtually
identical to those in K. (A.). Both cases involved sexual
offences against children. In both cases, the alleged
perpetrators were close family members of the complainants – a
grandfather and his brother in K. (A.), a stepfather in this
case. In both cases, the question sought to be put by way of
challenge for cause was (aside from the case-specific details)
identical. In both cases, the evidentiary record on which
defence counsel relied for the proposed challenge for cause was
very similar – principally, articles on the subject of challenge
for cause written by various defence counsel and reference to
trial rulings in other cases in which offence-based challenges
for cause had been permitted.
[11] In a supplementary factum filed after this court’s decision
in R. v. K.(A.) was released, the appellant contends that there
is one material difference between this case and K.(A.). He
points out that in K.(A.) the perpetrators were a grandfather and
his brother who sexually assaulted the former’s granddaughters
whereas in this case the appellant is a stepfather of the two
complainants. This is a material difference, submits the
appellant, because prospective jurors who express difficulty and
feelings of bias in the context of sexual assault cases involving
children often do so on the basis of their own status as parents.
[12] I do not agree. In my view, the submission draws too fine a
line. In the realm of family-based sexual offences, it would be
practically impossible to say that jurors would feel any less
revulsion towards a grandfather than a stepfather
[13] My conclusion is that R. v. K.(A.) is determinative with
respect to this ground of appeal. The trial judge’s refusal to
allow an offence-based challenge for cause anticipated,
correctly, this court’s analysis and conclusion in that case.
(2) Severance
[14] Prior to the trial, defence counsel sought two rulings from
the trial judge – first, a ruling that the evidence of the two
complainants was not similar fact evidence; and second, an order
severing the indictment and requiring separate trials for the
counts relating to each complainant. The trial judge held the
similar fact evidence application in abeyance until the trial
commenced so that he could hear evidence relevant to the
application. Ultimately, during the trial, the trial judge ruled
that the evidence of the two complainants did not meet the test
for similar fact evidence.
[15] The trial judge ruled against the accused’s severance
application. He reasoned:
Position of the accused – In a
forthright manner, Mr. Lindsay advised
me that it is the position of the
accused that the sexual misconduct
attributed to him by each complainant
did not occur. It is his position that
the allegations have been concocted or
fabricated.
I have come to the conclusion that
ordering separate trials by severing
counts one and two of the indictment
from counts three, four and five1 would
not be in the interests of justice in
the circumstances of this case, whether
or not the respective allegations of
each complainant can be used as similar
fact evidence with respect to the
allegations of the other.
I have arrived at this conclusion
because of the strong factual nexus
between the counts as it related to the
important issue of disclosure. The
disclosure of the respective complaints
occurs within the context of a hotly
contested custody dispute and the laying
of criminal charges of assault.
The position of the accused is that each
complainant concocted their respective
allegations to support [BH] in her
custody claim. The jury, in my view, is
entitled to know the full story relating
to the disclosure. It is artificial for
the jury only to hear evidence of how
one complaint came to light when the
accused’s position is that the two
complainants fabricated the allegations
in support of Mrs. [H’s] claim for
custody.
[16] The appellant submits that the trial judge erred in making
this ruling. He contends that the factual nexus relied on by the
trial judge (the close timing of the disclosure by the
complainants of the alleged sexual assaults) was minimal. He
also argues that the prejudicial effect of joinder was so strong,
due to the nature of the offences, that the refusal to sever
resulted in an injustice.
[17] I disagree. A trial judge has a broad discretion in
deciding whether to sever a count or counts in an indictment
pursuant to s. 591(3) of the Criminal Code. As expressed by
Iacobucci J. in the leading case, R. v. Litchfield (1993), 86
C.C.C. (3d) 97 (S.C.C.), at 113-14:
The criteria for when a count should be
divided or a severance granted are
contained in ss. 590(3) and 591(3) of
the Criminal Code. These criteria are
very broad: the court must be satisfied
that the ends or interests of justice
require the order in question.
Therefore, in the absence of stricter
guidelines, making an order for the
division or severance of counts requires
the exercise of a great deal of
discretion on the part of the issuing
judge. The decisions of provincial
appellant courts have held, and I agree,
that an appellate court should not
interfere with the issuing judge’s
exercise of discretion unless it is
shown that the issuing judge acted
unjudicially or that the ruling resulted
in an injustice. [Emphasis added.]
See also: R. v. Cuthbert (1997), 1997 397 (SCC), 112 C.C.C. (3d) 96 (S.C.C.).
[18] I see no basis for interfering with the trial judge’s ruling
not to sever the counts in the indictment and order separate
trials with respect to each complainant. While the counts
encompassed separate transactions and complainants, there was an
important factual nexus between the assaults. The allegations
were disclosed at the same time under similar circumstances. Much
of the strength of the defence theory lay in the common issue of
the custody battle. As the trial judge pointed out in his charge
to the jury, it was the position of the defence “that all three
[BH, PG and RH] were linked by blood, and that the two
complainants acted to further [BH’s] custody claim”. It would
have been artificial to separate the timing and reasons for both
complainants’ disclosure from the fact that the disclosure led to
criminal charges against the appellant relating to both
complainants. It cannot, therefore, be said that the trial judge
acted unjudicially in refusing severance. I am also satisfied
that, having regard to the manner in which the trial unfolded and
the theory of the defence, no injustice resulted.
(3) Similar fact evidence
[19] The trial judge ruled that the evidence relating to the two
complainants could not be classified as similar fact evidence.
Accordingly, it was incumbent on the trial judge to impress upon
the jury that, in returning its verdict on each count in the
indictment, the jury was to be influenced only by the evidence
applicable to that specific charge: see R. v. Mitchell and Healey
(1989), 1989 9925 (ON CA), 70 C.R. (3d) 71 (Ont. C.A.).
[20] The trial judge charged the jury in this fashion:
It is a fundamental principle of
criminal law that evidence on one count
cannot be used to prove the guilt of an
accused on another count. You will deal
with each count in the indictment
separately. I instruct you that as a
matter of law that you must not use the
evidence of one complainant to support
or to confirm the credibility of the
other complainant. Do not use that type
of reasoning.
[21] The appellant does not challenge this component of the
charge. However, the appellant contends that the trial judge had
to go farther and instruct the jury that the evidence of two
complainants could not be relied on as proof that the appellant
was the sort of person who would commit the offence and on that
basis infer that he was guilty: see R. v. D. (L.E.) (1989), 50
C.C.C. (3d) 142 at 162 (S.C.C.); R. v. B.F.F. (1993), 79 C.C.C.
(3d) 112 at 119 (S.C.C.); and R. v. Rarru (1996), 107 C.C.C. (3d)
53 (S.C.C.).
[22] I do not agree with this submission. In my view, the trial
judge was alive to the propensity issue and included several
clear cautions in his charge.
[23] With respect to the appellant’s criminal record, the trial
judge instructed:
He is not being tried for his previous
convictions and you must not infer from
the fact, nature or extent of such
criminal record that he is or is likely
to be the type of person who would be
disposed to commit the offence with
which he is presently charged.
[24] With respect to prior acts of discreditable conduct, the
trial judge stated:
Now, the accused in this case is on
trial, and I repeat this, for sexual
assault on the two complainants and for
nothing else. Those are the charges.
To the extent that you accept that the
accused has committed prior acts of
discreditable conduct, you must not say
to yourself, and I repeat, that you must
not say to yourself the accused is a
person of bad character and more likely
to have committed the charges alleged
against him in the indictment. Your
role is not to punish the accused for
any past misconduct but simply to decide
whether the prosecution has proven
beyond a reasonable doubt the commission
of the offences alleged.
In other places in his instructions, the trial judge provided a
similar instruction when he discussed specific acts which the
jury might regard as discreditable conduct (e.g. one complainant
testified that the accused frequently strapped him).
[25] In my view, the trial judge’s charge adequately conveyed to
the jury the need to assess each of the counts separately, and to
isolate the evidence relating to each of the offences. The
objective of this kind of warning is ultimately to prevent the
jury from engaging in reasoning by disposition. Taken as a
whole, the trial judge’s instructions met this objective.
[26] I make one final observation on this issue. The trial judge
reviewed his proposed charge on the issue of propensity with
counsel prior to delivering it. Defence counsel made no objection
at the time and did not object to this component of the charge
after the trial judge finished his charge to the jury. This is
not, of course, determinative of the issue. It is, however, some
indication that, at the time, defence counsel was satisfied with
the trial judge’s proposed and actual handling of the propensity
issue.
(4) Adverse inference
[27] Prior to the trial judge’s charge to the jury, counsel for
the appellant requested that the jury be told that it could draw
an adverse inference from the failure of the Crown to call
certain independent witnesses who could testify about whether RH
had disclosed the abuse before the custody battle began. These
witnesses included RH’s best friend, her boyfriend at the time,
and the boyfriend of a witness who was called by the Crown.
[28] The trial judge did not accede to defence counsel’s request.
He reasoned:
You have a choice as to whether or not
you wish, after having been provided with
this disclosure, of calling those
witnesses yourself. As I read Regina v.
Cook, the only obligation that the Crown
has is to call witnesses which are
sufficient to prove the elements of the
offence and that there is a very broad
discretion that’s given to the Crown,
subject to my overriding discretion with
respect to making sure it’s a fair trial
… .
So although I’m going to tell the jury
that they can find that as a result of an
absence of evidence a reasonable doubt
can arise, because those are the words of
Mr. Justice Cory in his new Supreme Court
of Canada decision, I don’t think it’s
fair to say that an adverse inference
should be – or they may have an adverse
inference as a result of the Crown not
calling these witnesses.
[29] In the first paragraph of this passage, the trial judge
referred explicitly to R. v. Cook (1997), 1997 392 (SCC), 114 C.C.C. (3d) 481
(S.C.C.). In the second paragraph, the trial judge was referring
to R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.), the leading
case on the definition of reasonable doubt.
[30] In my view, the trial judge’s understanding and application
of Cook and Lifchus were correct. Cook makes clear that the
Crown’s obligation is to call enough witnesses to adequately
prove the essential elements of the offence. The Crown did that
in this case.
[31] Cook does not require the defence to call a witness if the
Crown does not call the witness and the defence thinks that the
witness would testify in a way helpful to the defence. Calling
that witness is, of course, one option for the defence. In
Cook, L’Heureux-Dub‰ J. mentioned other options, including
“asking the trial judge to call the witness, commenting in
closing on the witness’ absence, or asking the trial judge to
comment” (at p. 496).
[32] In this case, defence counsel availed himself of only one of
these options. He asked the trial judge to tell the jury that it
could draw an adverse inference from the failure of the Crown to
call certain witnesses. The trial judge, in the exercise of his
discretion, refused.
[33] I cannot fault his decision in this regard. The witnesses
called by the Crown established the essential elements of the
offence. If the defence thought that the testimony of other
witnesses might cast doubt on the credibility of one of the
complainants on the issue of disclosure, it knew of the existence
of those witnesses and could have called them as part of the
defence case.
[34] The trial judge followed the procedure recommended by this
court in R. v. Dupuis (1995), 98 C.C.C. (3d) 497 at 507, and
discussed the question of instructions on the failure to call
witnesses with counsel. This discussion preceded the jury
addresses as well as the jury charge. I do not read his reasons
as holding that in light of Cook an adverse inference instruction
can never be given where the Crown fails to call a particular
witness. Nevertheless, the judge should exercise great care
before giving such an instruction. In most cases, as here,
instructing the jury in accordance with the model instruction
from Lifchus that a reasonable doubt may be derived from an
absence of evidence will be sufficient. In this case, the trial
judge was satisfied that this was not a proper case for any such
instruction. He was in the best position to make that
determination and I would not interfere with the exercise of his
discretion. It was open to defence counsel, if he saw fit, to
draw the jury’s attention to the absence of these witnesses,
whose evidence might have supported the Crown’s case, in his jury
address.
Disposition
[35] For the above reasons, I would dismiss the appeal.
Released: February 18, 2000 “J.C. MacPherson J.A.”
“I agree R.S. Abella J.A.”
“I agree M. Rosenberg J.A.”
1 Date format is yyyymmdd
2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS
1 The reference to fourth and fifth counts is a slip on which
nothing turns. The original indictment contained five counts –
two relating to the complainant PG and three relating to the
complainant RH. The Crown proceeded with only one count relating
to RH.