COURT OF APPEAL FOR ONTARIO

DATE: 20000428

DOCKET: C31995
C32068

CHARRON, GOUDGE AND MACPHERSON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN
(Respondent)

and

F. J. H.
(Appellant)

AND B E T W E E N:

HER MAJESTY THE QUEEN
(Applicant/Appellant)

and

F. J. H.
(Respondent)

Gregory LaFontaine
for the Appellant

Laurie Lacelle
for the Respondent

Heard: March 10, 2000

On appeal from conviction by Hermiston J., with a jury, dated
January 20, 1999.

MACPHERSON J.A.:

INTRODUCTION

[1] The appellant, F. J. H., was tried before Hermiston J.,
sitting with a jury, in Barrie in January 1999. He was convicted
of three offences - sexual assault against BP, sexual assault
against SK, and touching for a sexual purpose SK, a person under
the age of fourteen. He was acquitted of the offence of
invitation to touch for a sexual purpose in relation to BP, a
person under the age of fourteen. The trial judge directed
acquittals on three other counts in the indictment. The trial
judge imposed a one-year conditional sentence to be followed by
eighteen months of probation.

[2] The appellant appealed his convictions on four grounds:
(1) the failure of the trial judge in his jury charge to warn
the jury about improper use of evidence in two respects – first,
use of evidence across counts, and second, use of evidence for an
impermissible propensity purpose;
(2) the inconsistency of the verdicts on the two counts relating
to the complainant BP ;
(3) an improper mid-trial comment by the trial judge concerning
the effect of the preliminary inquiry; and
(4) the multiplicity of convictions on the two counts relating
to SK based on the same alleged conduct.

[3] At the appeal hearing, the appellant abandoned his second
and third grounds of appeal. The Crown conceded the fourth
ground of appeal on the basis of R. v. Kienapple (1974), 15
C.C.C. (2d) 524 (S.C.C.) Accordingly, the only live ground of
appeal was the first ground relating to limiting instructions in
the trial judge’s charge to the jury.

[4] The Crown sought leave to appeal the sentence and sought a
term of incarceration instead of a conditional sentence.

[5] At the conclusion of the hearing, we allowed the appeal
against the three convictions and dismissed the Crown’s
application for leave to appeal the sentence as moot. We
indicated that brief reasons would follow. These are those
reasons.

A. FACTUAL BACKGROUND

[6] BP was the daughter of the appellant’s common law wife, SP.
The three resided together during the relevant time period. BP
alleged that on a number of occasions the appellant touched her
vagina over her panties, or removed her panties and inserted his
fingers into her vagina. The alleged course of conduct took
place from the time BP was 6 years old until she was 13.

[7] SK was a friend of BP. On one occasion, when she was 8 or 9
years old, she slept over at BP’s home. During the night she got
up for a glass of water. She alleged that she encountered the
appellant, who was watching television in the living room. He
asked her to sit on his lap. While she was on his lap, he placed
his fingers into her vagina.

[8] At the beginning of the trial, the Crown brought an
application to permit the jury to use the evidence of the
allegations of BP as similar fact evidence in respect of the
allegations of SK and vice versa. The trial judge reserved his
decision on the Crown’s application. At the conclusion of the
trial, he dismissed the application. He reasoned:

In the case at bar the conduct of the
accused is common to each complainant and the
nature of the conduct is similar - touching
the child’s vagina in his home. The
complaints are contemporaneous. The evidence
is certainly discreditable to the accused and
can be considered relevant and material. The
inference to be drawn is that the accused has
a propensity, or disposition to molest young
girls and did so on these occasions as set
out in the different counts. But in
achieving the correct balance the court must
be satisfied that the probative value of the
evidence exceeds, or outweighs its
prejudicial effect against the accused on
each count. I am not so satisfied. The
evidence of each girl is not strong. The
evidence of [SK] appears to be inconsistent
with statements given earlier to the
Childrens’ Aid Society. [BP’s] evidence is
inconsistent with that of [SK] as to what she
heard on the night in question and the time
of night the alleged incident against [SK]
occurred. There is a possibility of
collusion between the two complainants. It
is my view that each count should be judged
by the jury based on the evidence relating to
that count only. The application is
therefore dismissed. [Emphasis added.]

[9] In spite of this ruling, the trial judge did not instruct
the jury that they were not to consider evidence respecting
counts relating to one complainant in their consideration of
counts concerning the other complainant. Nor did the trial judge
instruct the jury that evidence of one set of allegations
respecting one complainant could not be used as bad character or
propensity evidence in their consideration of the allegations
concerning the other complainant.

[10] The Crown concedes that the trial judge should have given
these two limiting instructions. In our view, this concession is
properly made. However, despite its concession that the trial
judge erred in not properly charging the jury on these matters,
the Crown relies on the proviso in s. 686(1)(b)(iii) of the
Criminal Code in support of its position that the convictions
should stand. Section 686(1)(b)(iii) provides:

686(1) On the hearing of an appeal against a
conviction … the court of appeal …
(b) may dismiss the appeal where …
(iii) notwithstanding that the court is of
the opinion that on any ground mentioned
in (a)(ii) the appeal might be decided in
favour of the appellant, if it is of the
opinion that no substantial wrong or
miscarriage of justice has occurred ….

B. ISSUE

[11] There is a single issue to be resolved on this appeal -
despite the trial judge’s error in failing to provide proper
limiting instructions, should the appeal be dismissed under
s. 686(1)(b)(iii) of the Criminal Code on the ground that no
substantial wrong or miscarriage of justice has occurred?

C. ANALYSIS

[12] The trial judge ruled against the Crown on its similar fact
evidence application. However, since the counts were joined on
one indictment, the jury heard all of the Crown’s evidence about
the alleged sexual assaults against the two complainants. In
this circumstance, it was incumbent on the trial judge to warn
the jury that it must consider only the evidence relevant to each
alleged assault in arriving at a verdict on that assault. As
well, it was essential that the trial judge warn the jury that it
could not use the conduct of the appellant in relation to one
complainant to form an opinion that he was the type of person who
might engage in the criminal activity related to the allegations
of the second complainant: see R. v. B. (F.F.) (1993), 79 C.C.C.
(3d) 112 (S.C.C.), and R. v. Rarru (1996), 1996 195 (SCC), 107 C.C.C. (3d) 53
(S.C.C.).

[13] In R. v. M. (B.) (1998), 1998 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.),
Rosenberg J.A. provided a useful summary of the law in this area.
Referring to both B. (F.F.) and Rarru, he said that a jury charge
should contain two warnings. He expressed them in this fashion,
at pp. 370-71:

First, when evidence of one count is not
admissible as similar fact evidence on the
other counts, jurors must be instructed to
consider each charge separately and not to use
evidence relating to one charge as evidence on
any of the other counts ….

Second, Rarru requires the trial judge to give
the jury a proper limiting instruction
regardless of whether evidence of other counts
or of uncharged misconduct is admissible as
similar fact evidence … It was essential that
the jury be instructed that it was not to rely
on the evidence of other counts or other
uncharged misconduct as proof that the accused
is the sort of person who would commit the
offence or offences charged ….

[14] In the present appeal, the Crown concedes that these two
limiting instructions should have been given by the trial judge.
However, the Crown submits that this error was not fatal in this
case and can be saved by the application of s. 686(1)(b)(iii) of
the Code. The Crown succinctly states its position in its factum
at paragraph 30:

30. The Respondent concedes that the
    trial judge should have provided the jury with
    a limiting instruction in accordance with this
    Court’s decision in R. v. M.(B.). However, in
    the unique circumstances of this trial, and
    having regard to the charge to the jury as a
    whole, the closing arguments of counsel, and
    the jury’s verdict, the trial judge’s error
    occasioned no miscarriage of justice.

[15] In this paragraph, the Crown mentions three separate factors
in support of its s. 686(1)(b)(iii) argument - the jury charge as
a whole, closing arguments by counsel, and the jury’s verdict. I
will consider these in turn.

[16] The Crown submits that the trial judge’s charge would have
communicated to the jury that the evidence of one complainant was
to be considered solely in relation to the counts pertaining to
her allegations. The trial judge reviewed the counts in the
indictment pertaining to each complainant one after the other.
He reviewed the theories of the Crown and the defence relating to
each complainant separately. He instructed the jury that “it is
incumbent upon the prosecution to prove beyond a reasonable doubt
that the allegations made by the complainant in each count are
true.”

[17] In my view, the structure and contents of the jury charge
are not sufficient to overcome the absence of the two standard
warnings set out in B. (F.F.), Rarru and M.(B.). The problem
with the charge is its silence about what the jury could not do
with the evidence.

[18] The trial judge was alive to the nature and significance of
the problem. In his ruling on the Crown’s similar fact evidence
application he remarked on the similarities between the
allegations of the two young girls - similarities of time,
location and actual conduct. However, he stated that the
“evidence of each girl is not strong” and pointed to
inconsistencies between their evidence. He also referred to the
possibility of collusion by the complainants. These factors led
him to deny the Crown’s application and to conclude that “each
count should be judged by the jury based on the evidence relating
to that count only.”

[19] Unfortunately, the trial judge never instructed the jury in
accordance with his ruling. In this case, given the similarities
between the allegations of the two complainants, there was a
danger that the jury might improperly consider the evidence of
one complainant as corroboration of the other. There was a
further danger that the jury might conclude that the appellant
was guilty because he was the sort of person to commit this type
of offence. It was, therefore, incumbent on the judge to explain
clearly to the jury that they could not use the evidence in these
ways - namely, across counts in the indictment relating to
different complainants, and to suggest that the accused had a
propensity or disposition to commit these types of crimes.

[20] The Crown also submits that the structure and contents of
the closing addresses of counsel would have brought home to the
jury that they had to consider the evidence pertaining to each
complainant separately. In those addresses, the evidence of each
complainant and the credibility issues to be resolved by the jury
in regard to the truthfulness of each complainant were reviewed
separately for each complainant. Moreover, counsel did not
suggest that the jury could make comparisons between the evidence
of the two complainants about the appellant’s conduct.

[21] In my view, the Crown’s submission on this point is
misconceived. The jury must receive its instructions about the
law from the judge, and only the judge. Where a trial judge
omits a required caution from his charge, this error cannot be
cured by inference flowing from either the structure or the
contents of the closing addresses by counsel.

[22] Finally, the Crown contends that the actual verdicts
rendered by the jury indicate that the jury did not misuse the
evidence. The jury found the appellant guilty of sexual assault
on BP, but not guilty of the offence of inviting BP to touch him
for a sexual purpose. The Crown submits that these verdicts
could only have been rendered if the jury considered the evidence
on each count carefully and separately.

[23] The Crown’s interpretation of the jury verdicts is a
plausible one. However, the opposite interpretation is equally
plausible. The jury might have found the appellant not guilty on
count 4 of the indictment because they were not satisfied beyond
a reasonable doubt on the basis of BP’s evidence that the
appellant had asked her to touch him for a sexual purpose. But
with respect to count 1, the jury might have supplemented BP’s
evidence concerning the appellant’s alleged sexual assaults with
SK’s evidence of the appellant’s similar conduct concerning her.
This reasoning, if the jury engaged in it, would be
impermissible. In short, the jury’s verdicts are at least as
consistent with improper use of the evidence as they are with
proper use.

[24] In B.(F.F.), Iacobucci J. described the circumstances in
which it is appropriate for an appellate court to apply the
proviso. He said, at pp. 140-41:

Section 686(1)(b)(iii) of the Criminal
Code is for use in exceptional cases only, as
this court has emphasized in two recent
cases. In R. v. S. (P.L.) (1991), 64 C.C.C.
(3d) 193 at 198, … Sopinka J. held for the
majority, that s. 686(1)(b)(iii) can only be
invoked where “the evidence is so
overwhelming that a trier of fact would
inevitably convict”. In R. v. Broyles
(1991), 1991 15 (SCC), 68 C.C.C. (3d) 308 at p. 328, … the
court emphasized: “The appropriate standard
for the application of s. 686(1)(b)(iii) is
an onerous one.” The court quoted
Sopinka J.’s reasons from R. v. S. (P.L.),
supra, and stated at p. 328: “Accordingly,
the question here is whether there is any
possibility that the trier of fact would have
had a reasonable doubt as to the guilt of the
accused had the impugned evidence been
removed from their consideration.”

[25] In my view, the Crown cannot bring this appeal within the
very high standard set out in this passage. In the end, the trial
judge’s own reasoning in his ruling on the Crown’s similar fact
evidence application underlines the dangers in this case
concerning the evidence of the two complainants. In the context
of the judge’s own statement that the “evidence of each girl is
not strong”, I cannot conclude that, in the language of S.
(P.L.), “the evidence is so overwhelming that a trier of fact
would inevitably convict”.

DISPOSITION

[26] I would allow the appeal and order a new trial on counts 1,
5 and 7 in the indictment. In light of this result, the
application of the Kienapple principle is left to the judge on
the new trial in the event that the appellant is found guilty of
both counts 5 and 7. In light of this disposition, I would
dismiss as moot the Crown’s application for leave to appeal
sentence.

Released: April 28, 2000 “J.C. MacPherson J.A.”
“I agree L.V. Charron J.A.”
“I agree S.T. Goudge J.A.”