W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. A.B., 2009 ONCA 180
DATE: 20090226
DOCKET: C46408
COURT OF APPEAL FOR ONTARIO
Borins, Cronk and LaForme JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
A.B.
Appellant
Michael Dineen, for the appellant
Daniel Guttman, for the respondent
Heard: February 19, 2009
On appeal from the conviction entered on September 28, 2006, and sentenced imposed on November 23, 2006 by Justice Anne Marie Molloy of the Superior Court of Justice.
Borins J.A.:
[1] The appellant was convicted of 7 of 11 counts of sexual misconduct. He appeals his convictions on two principle grounds relating to the trial judge’s instructions to the jury:
(1) The jury instructions failed to include any review of the positions of the parties and the evidence capable of supporting their positions.
(2) The trial judge failed to adequately outline factors that the jury could have considered relative to the complainant’s credibility.
[2] At page five of the instructions, the trial judge told the jury that she would refer to the evidence to help them remember it and to show them how it relates to the issues. However, two paragraphs later, the trial judge told the jury that as it had been a short trial (three days) she was not going to review or summarize the evidence. Thus, she provided the jury with no assistance in respect to outlining the evidence on each of the 11 counts, and relating the evidence to the positions of the parties.
[3] In addition, because the trial was on a multiple count indictment, the trial judge was obliged to tell the jury that they had to consider the evidence with respect to each count separately, and that they could not consider all of the evidence in respect to each count. In this regard, she told the jury to “consider all of the evidence in reaching your decision”. The Crown had not asked that the evidence be admitted as similar fact evidence on each count.
[4] As for the trial judge’s failure to adequately instruct the jury in respect to the complainant’s credibility, the trial judge stated only that the appellant’s defence was a denial. However, the appellant took serious issue with the complainant’s credibility based upon his admission in cross-examination that he had used marijuana following his denial of using it in chief and considerable discreditable conduct on his part while living with the appellant which he said provided a motive by the complainant to fabricate his evidence.
[5] While in her general charge about determining a witness’ credibility the trial judge referred to the inconsistency in the complainants’ testimony, she made no reference to the other factors that were capable of undermining his credibility. Although she said that the jury could consider other factors, she did not identify them. This seriously undermined the appellant’s defence.
[6] I would, therefore, give effect to both grounds of appeal.
[7] While instructions to the jury need not follow a particular formula and must be looked at as a whole, the instructions must fulfill the purposes for which they are given. In R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 27, Doherty J.A. said:
By the end of the instructions, whatever approach is used, the jury must understand:
• the factual issues which had to be resolved;
• the law to be applied to those issues and the evidence;
• the positions of the parties; and
• the evidence relevant to the positions taken by the parties on the various issues.
[8] In R. v. Daley, [2007] S.C.R. 53 at para. 29, on behalf of the majority, Bastarache J. expanded upon the purposes of a jury charge as follows in setting out the elements of a jury charge:
instruction on the relevant legal issues, including the charges faced by the accused;
an explanation of the theories of each side;
a review of the salient facts which support the theories and case of each side;
a review of the evidence relating to the law;
a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations;
instruction about the burden of proof and presumption of innocence;
the possible verdicts open to the jury; and
the requirements of unanimity for reaching a verdict.
[9] In the same case, Fish J., in dissent, agreed with the purposes of a jury charge. At paras. 117 to 125, he traced the history of the rule that has stood in Canada since 1904 and that was clearly stated in Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-98:
The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.
[10] This is not one of those rare cases in which it was unnecessary to outline the positions of the parties and the evidence supporting those positions. To judges and lawyers, a three day trial may be considered a short trial, but I do not feel that the same can be said of a lay juror. As well, because there were eleven counts, at the very least it was important to review the evidence separately with respect to each count and to instruct the jury to consider it only in that respect.
[11] Based on the foregoing, unfortunately the charge failed to give the jury any understanding of the evidence relevant to the issues to be decided on each count or relevant to the defence. Thus, the charge provided the jury with inadequate assistance as to the facts concerning each of the counts and the defence.
[12] I would therefore allow the appeal, set aside the convictions and order a new trial on the seven counts on which the appellant was convicted.
S. Borins J.A.
LaForme J.A. (Concurring):
[13] After a three-day jury trial, the appellant was convicted of four counts of sexual assault and three counts of sexual exploitation with respect to sexual acts perpetrated upon his nephew on numerous occasions between 1992 and 1996. Two counts were specific to 1992, two were specific to 1993, two were specific to 1994, and the remaining count was specific to 1996. The appellant was sentenced to a term of imprisonment of five years. The sentence was concurrent on all convictions.
[14] While my colleague, Borins J.A. reaches the same result that I do, I believe respectfully that the trial judge’s error was a more focused one than my colleague suggests. In my view, given the manner in which the Crown chose to conduct the prosecution of the appellant, the trial judge’s error was her failure to review with the jury the parties’ positions with respect to evidence that was relevant to each count and to instruct the jury to treat each count as distinct from the others.
[15] The trial judge declined to review and summarize the evidence because the trial had been short, the evidence remained fresh in the jury’s minds and counsel had made their closing arguments to the jury immediately before the trial judge’s jury charge. While this approach may be satisfactory in some trials, it was unsatisfactory in this one. Counsels’ closing arguments did not include a review of the evidence as it applied to the discrete counts and appeared to focus almost exclusively on witness credibility. In these circumstances, this case was not one of those rare cases in which the trial judge did not need to review the evidence and relate that evidence to the defence and Crown positions at trial: R. v. Garon, [2009] O.J. No. 24 (C.A.); Azoulay v. The Queen 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495; R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.).
[16] On the contrary, the jury had to be clearly instructed in respect of the evidence and the theories of the crown and the defence concerning each of the separate offences charged against the appellant. This is especially true where, as here, the trial judge does not appear to have instructed the jury that each count must be decided independent of other counts and where the closing arguments of the two parties appeared to characterize the case as being a “credibility contest”.
[17] The trial judge’s failure to provide such an instruction to the jury could have moved the jury to error. The jury may have decided that if the appellant committed the offences alleged in 1992, he must have committed the others. Inadvertently the jury may have used the evidence with respect to one count as evidence of discreditable conduct or propensity evidence with respect to other counts. Further the jury may have decided the case on the basis of finding the complainant to be credible and the appellant to be less credible or incredible.
[18] The Crown acknowledges that this is not an appropriate case for the application of the curative proviso. I agree. Accordingly, I would allow the appeal, set aside the convictions and order a new trial on the counts on which the appellant was convicted.
RELEASED: February 26, 2009 (“S.B.”)
H.S. LaForme J.A.
I agree. E.A. Cronk J.A.