DATE: 20030425 DOCKET:C38077

COURT OF APPEAL FOR ONTARIO

ABELLA, SIMMONS AND ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

D. M.

Appellant

David Tanovich for the appellant

C.J. Arnup for the respondent

Heard: March 17, 2003

On appeal from the conviction by Justice Nick Borkovich of the Superior Court of Justice dated November 13, 2001 and from the sentence imposed by Justice Nick Borkovich dated January 18, 2002.

SIMMONS J.A.:

[1] At the conclusion of this appeal, the president of the panel stated that the appeal was allowed for reasons to follow. These are the reasons.

[2] The main issue on this appeal was whether the trial judge provided adequate instructions to the jury concerning evidence of discreditable conduct by the appellant.

[3] The appellant was charged with incest, sexual assault and sexual exploitation in relation to his daughters Y. and P. He was also charged with assault with a weapon in relation to P.

[4] P. was only eight years old at the time of the trial. When called as a witness, she did not respond to questions put to her on the preliminary application to determine whether she could be sworn. Accordingly, P. did not testify. As there was no other evidence to support the charges that the appellant sexually abused P., at the conclusion of the Crown's case, the trial judge dismissed the charges of incest, sexual assault and sexual exploitation relating to P.

[5] Subsequently, after finding that there was no evidence that the appellant assaulted P. with a weapon during the time frame alleged in the indictment, the trial judge also dismissed the assault with a weapon charge.

[6] Although the trial judge dismissed all of the charges relating to P., there remained evidence before the jury that the appellant physically abused P. outside the time frame alleged in the indictment. In addition, there was evidence before the jury relating to the following matters:

i) sexual misconduct by the appellant against Y. outside the time frame alleged in the indictment;

ii) physical abuse by the appellant against Y. and the children's mother; and

iii) allegations that the appellant smoked marijuana, that he walked around the house unclothed, that he watched pornographic movies, and that he used alcohol and marijuana to entice sexual favours from Y.

[7] The appellant admitted that he smoked marijuana, that he watched pornographic movies, that he occasionally spanked the children and that he had a homemade strap for the purposes of "deterrence". However, he denied the balance of the allegations of discreditable conduct and the allegations in the indictment.

[8] The trial judge's instructions to the jury concerning the foregoing evidence were as follows:

You recall that the Crown in his address told you to remember [P.] as she clutched the doll in the witness box and invited you to infer that she was frightened and that the reason for that was the presence of her father. You must not do that. You will recall that her attendance in the witness box was for the purpose of determining whether or not she was able to give evidence in the case. She was not. Therefore she was not a witness in this trial and gave no evidence. You must not draw any inference with respect to her in coming to your decision as to guilt or innocence.

You will recall also the Crown's heated and impassioned address to you on Friday last. The issue you must determine is whether the Crown has proven beyond a reasonable doubt that the accused committed the sexual offences charged and not that he is a bad person. You must come to your decision in a calm dispassionate and unbiased manner and consider only the evidence and apply the evidence, as you find it, to the law as I give it to you.

[9] The Crown submits that the evidence of discreditable conduct by the appellant was admissible to show the atmosphere in the household and to explain why Y. did not leave before she did and why she initially denied being sexually abused.

[10] The Crown also submits that the first paragraph of the foregoing instructions amounted to a general instruction to the jury to disregard the evidence relating to P. and that the second paragraph was an adequate, albeit imperfect, instruction concerning discreditable conduct. In particular, the Crown contends that the second paragraph was one of many instructions designed to focus the jury's attention on the real issues in the trial, and that it was sufficient to make it clear to the jury that the question of whether the appellant was a bad person should not enter their deliberations.

[11] I reject the Crown's submissions concerning the adequacy of the foregoing instructions. In my view, the instruction relating to P. was solely a response to comments made by the Crown during his closing address. As such, it was not sufficient to make it clear to the jury that, in deciding the case, the jury was obliged to disregard the evidence concerning abuse of P., including evidence of sexually inappropriate behaviour by P. while in the company of her mother.

[12] As for the second paragraph of the foregoing instructions, in my view, it was insufficient to eliminate the risk of prejudice arising from the evidence of other discreditable conduct for two reasons.

[13] First, the evidence of other discreditable conduct adduced at trial created a significant risk of prejudice. In particular, Y's evidence alleging sexual misconduct by the appellant outside the period of the indictment amounted to similar fact evidence. Although not as serious as the conduct alleged in the indictment, given that Y.'s mother corroborated at least some of it, there was a substantial risk that the jury would misuse it to reason that the appellant had also committed the acts alleged in the indictment. The very nature of this evidence required a careful instruction concerning the permissible and impermissible uses of the evidence. No such instruction was given.

[14] Second, the instruction also lacked the following important components:

i) it failed to specifically caution the jury against using the evidence of discreditable conduct to reason that the appellant is the type of person who would commit the offences charged;

ii) it failed to caution the jury that they could use the disputed evidence of discreditable conduct only if they were satisfied that the disputed conduct occurred; and

iii) it failed to caution the jury that they must not use the evidence of discreditable conduct to conclude that the appellant was deserving of punishment and therefore convict him of the offences charged.

[15] The first omission was particularly serious. Despite the instruction that the question of whether the appellant is a bad person was not an issue in the case, the nature and extent of the evidence of discreditable conduct created a real risk that the jury would, in any event, draw the common sense inference that the appellant was the type of person to commit the offences charged.

[16] During the course of argument, Crown counsel fairly conceded that, in the event we found the trial judge's instructions to be inadequate, this is not a case in which the proviso can properly be applied. I agree.

[17] In my view, the appeal must be allowed. Accordingly, I would set aside the convictions and order a new trial on the charges for which the appellant was convicted.

Released: April 25, 2003 "RSA"

"Janet Simmons J.A." "I agree R.S. Abella J.A." "I agree Robert P. Armstrong J.A."