DATE: 20010808 DOCKET: C34232

COURT OF APPEAL FOR ONTARIO

CATZMAN, FELDMAN AND MACPHERSON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

A.E.R.

Appellant

Gregory J. Tweney for the respondent

John K. Lefurgey for the appellant

HEARD: April 20, 2001

On appeal from the convictions by Justice Paul M. Forestell, sitting with a jury, on January 19, 2000 and from the sentence imposed on February 17, 2000.

MACPHERSON J.A.:

A. OVERVIEW

[1] The appellant A.E.R. was convicted on charges of incest and committing an indecent act following a jury trial presided over by Justice Paul M. Forestell. A.E.R. appeals his convictions. He also seeks leave to appeal his sentence of 44 months incarceration.

[2] A.E.R. advances eight grounds in his conviction appeal:

(1) The Crown should not have been permitted to call evidence of prior complaints or prior consistent statements made by the complainant;

(2) The Crown should not have been permitted to make exhibits of the prior written statements of four Crown witnesses;

(3) The trial judge erred by charging the jury with respect to the offence of sexual assault instead of the offence of indecent assault with which A.E.R. had been charged;

(4) The trial judge erred by not giving the jury more detailed instructions with respect to the use the jury could make of a Crown witness’ criminal record when assessing his credibility;

(5) The Crown impermissibly commented in the presence of the jury on A.E.R.’s right to testify in his own defence;

(6) The Crown impermissibly raised her own integrity as a matter to be considered by the jury;

(7) The trial judge’s instruction with respect to the burden of proof was inadequate; and

(8) The trial judge’s instruction with respect to reasonable doubt was incorrect.

[3] The appellant’s sentence appeal arises from the context in which the sentence was imposed. This was the appellant’s second trial on the charges. He was convicted of the offences at the first trial and received a sentence of 32 months incarceration from Justice Edythe MacDonald. The appellant contends that, although a sentence of 44 months was within the appropriate range and although Forestell J. referred to the appropriate principles, it was unfair to impose a significantly higher sentence at the second trial.

[4] The Crown concedes that the trial judge and the Crown made errors relating to the first three grounds of appeal. However, the Crown contends that the proviso in s. 686(1)(b)(iii) of the Criminal Code should be applied because the three errors did not result in a substantial wrong or a miscarriage of justice.

[5] I agree that there were three errors in A.E.R.’s second trial. I would describe two of the errors as serious and the third as minor. I do not think that the proviso can be applied in this case. Hence a new trial, regrettably because it will be the third, is necessary.

[6] For the sake of completeness, I would indicate that, although it is unnecessary to consider them in these reasons, I do not think there is merit in the final five grounds of A.E.R. ’s appeal.

B. FACTS

[7] A.E.R. was convicted of indecent assault and incest against his daughter, K.1 (“K.1”), which occurred some 20 years prior to the trial when she was 15 or 16 years old. The allegations involved sexual intercourse on three or four occasions and touching and fondling.

[8] At the trial, the Crown called evidence from, inter alia, the complainant, a sister, a brother, a childhood friend and a woman who lived with the family during part of the relevant time. The appellant, who conducted his own defence, did not testify. The only witness he called was one of his sons.

[9] There are other facts relevant to the appeal. I find it convenient to set them out when discussing the specific ground of appeal to which they relate.

C. ISSUES

(1) Did the trial judge err in the way he handled evidence of prior complaints or prior consistent statements made by the complainant?

(2) Did the trial judge err by permitting the Crown to make exhibits of the prior written statements of four Crown witnesses?

(3) Did the trial judge err by charging the jury with respect to the wrong offence?

(4) If the answer or answers to any of questions (1) – (3) is ‘Yes’, should this court preserve the convictions by applying the proviso in s. 686(1)(b)(iii) of the Criminal Code?

D. ANALYSIS

(1) Prior complaints and prior consistent statements by the complainant

[10] At trial, the Crown adduced evidence from the complainant and from other Crown witnesses about prior statements made by the complainant disclosing various sexual assaults on her by her father. During her testimony, the complainant stated on, by my count, seven occasions that she had told others what her father was doing to her.

[11] There is a general exclusionary rule against the admission of self-serving evidence to support the credibility of a witness. The rule is usually applied to the prior consistent statements of a witness: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 313. However, the rule is not absolute. Sopinka, Lederman and Bryant list eight exceptions to the rule in their text.

[12] The Crown relies on two of the eight exceptions in this appeal. The Crown contends that the evidence of the complainant’s prior complaints and prior consistent statements (from both the complainant and from other Crown witnesses) was admissible to rebut allegations of recent fabrication and as part of the narrative relating to the various incidents.

[13] I do not accept, for two reasons, that the evidence relating to prior complaints and prior consistent statements was admissible under the first exception. First, the Crown did not indicate to the court that it was seeking to introduce the evidence of prior statements to rebut an allegation of recent fabrication: see R. v. F. (J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.), and Paciocco and Stuesser, The Law of Evidence, 2nd ed. (Toronto: Irwin Law, 1999), at p. 305. Second, although A.E.R.’s defence ultimately unfolded as an attack on the credibility of the complainant and other Crown witnesses, especially his son K.2, almost all of the evidence about the complainant’s prior complaints and prior consistent statements was introduced before the defence made any allegation of fabrication. Indeed, most of the evidence in this category was introduced during the examination-in-chief of the complainant, who was the second Crown witness. In short, there was virtually nothing in the nature of rebuttal in the Crown evidence about the complainant’s prior complaints and statements.

[14] I do agree with the Crown’s submission that the evidence about the complainant’s prior complaints and statements was admissible under the narrative exception. In The Law of Evidence in Canada, Sopinka, Lederman and Bryant note that narrative is of particular importance in cases where there has been a history of sexual abuse: “[i]n such cases, it may be necessary for the jury to hear the former statements so that they can better appreciate the unfolding of events”. In R. v. F. (J.E.), Finlayson J.A. described the exception in these terms, at p. 472:

It seems to me that the court should look to narrative as an exception to the rule against the admission of previous consistent statements . . . It must be a part of the narrative in the sense that it advances the story from offence to prosecution or explains why so little was done to terminate the abuse or bring the perpetrator to justice. Specifically, it appears to me to be part of the narrative of a complainant’s testimony when she recounts the assaults, how they came to be terminated, and how the matter came to the attention of the police.

[15] The prior statements must be an essential part of the narrative in order to be admitted and are only admissible for the purpose of understanding the witness’ story. The evidence is not admissible for the truth of what the witness is now saying. Also, the evidence of prior consistent statements should only be described in general terms and should not contain much detail as details of the statements would invite the trier of fact to conclude that the witness must be telling the truth by reason of the apparent consistency with the witness’ testimony: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, supra, at pp. 324-25.

[16] In my view, the evidence in this case about the complainant’s prior complaints and prior consistent statements complies with these strictures relating to the narrative exception to the general exclusionary rule. The complainant’s testimony, in particular, was central to her experience of being sexually abused by her father and her failure to report the abuse to the police or other authorities when it occurred. Because she had complained to several people who either did not believe her or did not help her, she may have felt that a complaint to the police at that juncture would have been futile.

[17] Moreover, her testimony on this issue was quite general; she testified principally about the fact of her complaints and statements. Typical of the complainant’s testimony in this regard was her description of the complaints she made to J.K., a woman who moved into the home to live with her father:

Q. Did you ever tell J.K. what was happening?

A. Yes, lots of times. Lots of times. I used to cry when I would tell.

Q. What did you tell her specifically?

A. I kept crying to her and telling her that dad’s coming in my room late at night and having sex with me.

The testimony of several Crown witnesses, including a sister, a brother and a childhood friend, about the complainant’s complaints and statements to them was in a similar vein; they confirmed the complainant’s testimony, but did not provide much detail.

[18] Accordingly, I conclude that the evidence about the complainant’s prior complaints and prior consistent statements was admissible as narrative. However, that is not the end of the matter on this issue. When this type of evidence is admitted, it is crucial that the trial judge provide a limiting instruction to the jury regarding the use it can make of the evidence. As expressed by Finlayson J.A. in F.(J.E.), at p. 476:

[19] Similar comments were made in R. v. Lajoie (1993), 64 O.A.C. 213 at 215-16, where this court stated:

Even though he had treated the evidence as a prior consistent statement, there was nothing in the charge by way of instruction as to its limited evidentiary value. Nor was such an instruction asked for by either party. Indeed, there was no objection to the charge which recounted the position of the Crown and the defence, and then reviewed the evidence of each of the witnesses. Whether viewed as a prior consistent statement or a complaint, the evidence in question was not evidence of the truth of the facts stated by the complainant in her testimony. But left as it was the jury may well have used the evidence for the very purpose they were not to use it, a form of self corroboration. The jury should have been told that the evidence could not be used as proof of the truth of the facts stated, but was evidence of the fact that she had complained and so, depending on the view the jury took of that evidence, conduct consistent with her story. There was non-direction amounting to misdirection. [Emphasis added.]

See also: R. v. Wait (1994), 69 O.A.C. 63, and R. v. Henderson (1999), 134 C.C.C. (3d) 131 (Ont. C.A.).

[20] Unfortunately, the trial judge provided no limiting instruction about the use the jury could make of the evidence relating to the complainant’s prior complaints and prior consistent statements. Indeed, in his jury charge, the trial judge seemed to suggest that the jury could use the evidence of prior complaints as corroboration of the complainant’s testimony about the sexual assaults:

You will have, as I said, the exhibits. Exhibit number two is a letter written by K.1 to D. in July of 1979 when these alleged acts were taking place. This letter was accepted to confirm that it was K.1’s or can be used as confirming evidence of K.1’s.

[21] Additionally, it should be noted that Crown counsel compounded the problem in her closing address by telling the jury that it could use the evidence of prior complaints and statements as corroboration of the complainant’s testimony:

K.1’s credibility was bolstered significantly in this trial by witnesses . . . She complained to a lot of people when she was a child. As her father has told her, no one will believe you. It took 20 years. But all those witnesses, after 20 years, have now said, yes, she did tell us. Yes, it did happen.

[22] In my view, both the trial judge’s charge and the Crown’s closing address had the potential to be regarded by the jury as an invitation to use the evidence of prior complaints and statements, in the language from the passage in Lajoie set out above, “for the very purpose they were not to use it, as a form of self-corroboration”.

[23] The Crown relies on several cases in which this court has held that in certain circumstances a limiting instruction is not required because it would have been obvious to the jury that the evidence could only be used to establish the fact of prior complaints and statements, and not as corroboration of the complainant’s testimony about the nature of the sexual assaults: see R. v. R. (G.) (1993), 80 C.C.C. (3d) 130 (Ont. C.A.); R. v. Clark (1995), 87 O.A.C. 178; R. v. S.(P.) (2000), 144 C.C.C. (3d) 120 (Ont. C.A.); and R. v. G.M., [2000] O.J. 5007 (C.A.). I do not think these cases govern the present appeal. In the present case, not only did the trial judge not provide an appropriate limiting instruction; both he and Crown counsel further suggested that the jury could use the evidence about prior complaints and statements as corroboration of the complainant’s testimony generally.

[24] I would characterize the error on this first issue as a serious one.

(2) Witness statements as exhibits

[25] The trial judge permitted four different statements to be entered as exhibits, even though the persons who made the statements testified at the trial. The four statements were: a letter the complainant wrote to her step-mother at the time of the alleged incidents; statements the witnesses C.W. and K.2, the complainant’s brother, gave to the police; and a letter K.2 wrote to the complainant’s psychiatrist in 1995.

[26] The Crown contends that the letter the complainant wrote to her step-mother was admissible as narrative and was relevant to her attempts to stop the abuse. I agree with this submission.

[27] The Crown concedes that the two statements given to the police and K.2’s letter to the complainant’s psychiatrist should not have been made exhibits. This is a fair concession. As a general proposition, the Crown is not entitled to make an exhibit of a prior consistent statement by a witness, especially where the statement may contain additional information not disclosed by the witness in his or her testimony in court. The statement has no evidential value and should not be something the jury takes with it into the jury room: see R. v. Pleich (1980), 55 C.C.C. (2d) 13 (Ont. C.A.); R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.); and R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.).

[28] The Crown contends that no prejudice was occasioned by the admission of the four statements as evidence. With respect, I disagree, essentially for two reasons.

[29] First, the trial judge gave no limiting instruction about the four prior consistent statements.

[30] Second, two of the statements admitted as exhibits contained important information that may well have been misused, by both the jury and the trial judge.

[31] In C.W.’s statement to the police, but not in her testimony, she said that she had seen K.2 touch another brother, R., in a sexual way and that she had told the father about this who, in turn, told her to mind her own business. When this matter was broached during A.E.R.’s cross-examination of C.W., the trial judge told him “to stay away from that”. Yet C.W.’s evidence on this issue was in the jury room as an exhibit. The jury obviously saw this portion of her statement because they posed this question during their deliberations:

2. C.W.’s statement (#4) includes a reference to sexual conduct between K.2 and R. During this verbal testimony and Evidence similar dialogue was denied. This inconsistency in procedure is making it difficult for the jury to determine K.2’s credibility. Why did the jury receive only part of this information.

The trial judge answered the question by telling the jury that testimony on this issue “was kept out [because] it has nothing to do and is not relevant to this charge at all”. Yet the jury knew about this alleged incident because C.W.’s statement stayed with them as an exhibit. Perhaps it assisted A.E.R. by raising a doubt in the jury’s mind about K.2’s credibility. On the other hand, it may have prejudiced A.E.R. if the jury thought that if he was the type of man to ignore a sexual assault against one of his children, he might also be the type of man to commit such an assault himself. It is pure speculation to try to imagine what the jury was thinking about this information. However, what is clear is that the evidence should not have been before the jury, that the jury noticed and was concerned about it, and that the evidence potentially could have improperly prejudiced A.E.R.

[32] The other troubling aspect of the statements entered as exhibits relates to K.2’s statement to the police in 1995. In the statement he said: “She was lying naked on her bed and my dad was lying on top of her. I was looking from the foot of the bed, I stayed about five minutes and saw Dad having sexual intercourse with K.1”. In K.2’s examination-in-chief, the Crown put this portion of the statement to him and asked whether he remembered making it to Sergeant Augustino. K.2 responded: “I recall the statement, but don’t recall the scene. When I close my eyes now, I don’t see it.” Also in his examination-in-chief, K.2’s description of what he saw was different in important respects from his statement to the police. He described his father as sitting on the bed and rubbing K.1’s stomach, not lying on top of her. And he testified that “I looked up and I got to, basically get to know what sex was”, rather than the more explicit “I . . . saw Dad having sexual intercourse with K.1”. With respect to these differences, the Crown submits that, when examined properly and in context, the only logical way to understand K.2’s oral testimony is to view what he said (“I learned what sex was that day”) as being the same as what was contained in his statement. Although there is some merit in this argument, I am concerned with the inconsistencies in his oral evidence and the written statement, especially since the statement was before the jury as an exhibit. Moreover, and quite significantly, in spite of these differences, the trial judge instructed the jury that “if you accept the evidence of K.2, obviously there was intercourse”. In my view, this was an improper and inaccurate instruction. In his testimony, K.2 did not adopt the component of his statement to the police relating to “sexual intercourse”. Further, the inconsistencies between the statement and his testimony did not support the trial judge’s assertion that if the jury believed him “obviously there was intercourse”.

[33] In summary, I would characterize the errors relating to the admission of the four witness statements as serious errors.

(3) Jury charge on wrong offence

[34] One of the charges against A.E.R. was that he committed the offence of indecent assault. The trial judge read the former s. 149 of the Criminal Code to the jury. However, he then provided the jury with the definition of “sexual assault”. When Crown counsel pointed out this error at the conclusion of the trial judge’s charge to the jury and observed that the error “might be a problem” for the jury, the trial judge responded: “No, I do not think I am going to recharge them on that point”.

[35] The trial judge’s error is probably explicable on the basis that the Criminal Code was amended in 1983; the single offence of sexual assault replaced the former offences of indecent assault and rape. The elements of the former offence of indecent assault and the current offence of sexual assault are essentially the same. Accordingly, in my view, the Crown’s submission in its factum on this issue is correct: “the trial judge’s inadvertent mistake could not have had any impact on the outcome of the trial . . . the judge’s instructions on this issue would have been correct had he simply replaced the word ‘sexual’ with the word ‘indecent’ in this portion of his charge”.

[36] In summary, although the appellant is correct in his submission that he “was entitled to have the jury instructed with respect to the elements of the offence he was charged with and not with the elements of an offence he was not charged with”, I would characterize the trial judge’s error in this regard as a relatively minor one.

(4) Section 686(1)(b)(iii) – the proviso

[37] The Crown relies on s. 686(1)(b)(iii) of the Criminal Code which permits an appellate court to dismiss an appeal even if there were legal errors at trial if “it is of the opinion that no substantial wrong or miscarriage of justice has occurred”.

[38] Where the Crown seeks to rely on the curative proviso, it must establish either “(i) that the error was minor and inconsequential and could not possibly have affected the verdict; or (ii) that although the error was potentially serious, the evidence is so overwhelming that the verdict would inevitably have been the same had the jury been properly instructed”: see R. v. W. (L.K.) (1999), 138 C.C.C. (3d) 449 at 472 (Ont. C.A.). In the present appeal, in light of my characterization of the three errors, the second of these inquiries is in play. Moreover, it is in play against the backdrop of the clear instruction of the Supreme Court of Canada that the proviso must be “used with great circumspection” lest it “would effectively deprive accused persons of the right to have their guilt or innocence determined by a properly instructed jury of their peers”: see R. v. B. (F.F.) (1993), 79 C.C.C. (3d) 112 at 117 (S.C.C.).

[39] I cannot conclude that this is a proper case for applying the proviso. Although the complainant’s evidence was strong and not seriously contradicted and although there was some corroborating evidence from various witnesses, my review of the record does not make me confident that the verdict would inevitably have been the same if the errors had not been made. In my view, the two serious errors relating to prior consistent statements and improper admission and use of exhibits could have affected the verdict. The jury saw too much that it should not have seen, was instructed erroneously with respect to crucial testimony of the most important of the Crown’s corroborating witnesses, and was not instructed properly with respect to permissible, and impermissible, uses of major components of the Crown evidence at trial. Accordingly, I am not prepared to conclude that the jury’s verdict is a safe one.

[40] Regrettably, some of the same errors which were made on the second trial were also made on the first trial of this matter. At both trials, the appellant represented himself, which makes it more difficult for Crown counsel and for the trial judge to guard the fair conduct of the trial for all involved. However, it will be incumbent on Crown counsel and, of course, the trial judge on any third trial to ensure that the errors on the first two trials are not repeated.

E. DISPOSITION

[41] I would allow the conviction appeal and order a new trial. It is not necessary to consider the sentence appeal.

RELEASED: August 8, 2001

“J. C. MacPherson J.A.”

“I agree M. A. Catzman J.A.”

“I agree K. Feldman J.A.”