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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Popal, 2009 ONCA 408
DATE: 20090515
DOCKET: C47492
COURT OF APPEAL FOR ONTARIO
Doherty, Goudge and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Khalil Popal
Appellant
Jonathan Dawe, for the appellant
Deborah Krick, for the respondent
Heard and orally released: May 5, 2009
On appeal from the conviction entered by Justice P. Rivard of the Superior Court of Justice, sitting with a jury, on April 13, 2007, and the sentence imposed on June 21, 2007.
ENDORSEMENT
[1] The appellant was convicted of several charges involving allegations of the sexual abuse of his young nephew and niece. The alleged assaults occurred over a prolonged period of time. The appellant’s family was living with the complainants’ family for the first few months of that time period. Later, the appellant’s family had their own apartment living in two different residences, but the complainants’ family visited regularly. It was the crown’s case that over a significant time period the appellant repeatedly assaulted his nephew, almost always at night while the nephew and the appellant were sleeping in the living room. It was the crown’s case that the appellant assaulted his niece on two separate occasions, one of which involved some vaginal penetration.
[2] The appellant testified in his own defence and denied the allegations. Several witnesses also testified for the defence and denied the sleeping arrangements testified to by the complainants.
[3] The Crown did not attempt to have the evidence of one complainant admitted as similar fact evidence in respect of the other complainant. Some of the evidence given by each complainant was, however, relevant to the charges involving the other complainant. For example, both complainants gave evidence about the relevant sleeping arrangements. Those arrangements were central to the crown’s case as it applied to the allegations involving the nephew.
[4] Crown counsel quite properly concedes that, on the case as presented, the jury could not use any assessment it made of the credibility of one of the complainants in arriving at the verdict with respect to the counts involving the other complainant. In other words, acceptance of the evidence of one complainant that he or she was sexually assaulted by the appellant did not assist the jury in determining whether he sexually assaulted the other complainant. Crown counsel concedes that it would have been better had the trial judge expressly told the jury it could not use a finding that one complainant was credible to conclude that the other complainant was credible. She submits, however, that the trial judge implicitly made it clear to the jury that they could not use a finding that one complainant was assaulted to support a finding that the other complainant must have been assaulted.
[5] The entirety of the relevant part of the charge on this matter is set out below:
Khalil Popal is charged with six offences. He was charged with eight offences but two have now been dismissed. There are two complainants. Each charge requires its own proof. The real issue for you to decide, in this case, is whether the offences alleged by each complainant ever actually took place. Be careful not to jump to the conclusion that, if one complainant is telling the truth, the other must be telling the truth as well. Nor should you jump to the conclusion that because the complainants allege similar conduct, they all must have occurred if anyone of them is proved. It is up to Crown counsel to prove each charge independently of the others. [Emphasis added.]
[6] Both counsel have carefully taken us through the case law involving similar cases where evidence of more than one complainant was heard by the jury and there is no suggestion that the evidence of one complainant constituted similar fact evidence on the charges involving the other. Counsel for the appellant submits that the charge in this case does not meet the requirements set out in cases like R. v. M.B. (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C (3d) 353 (Ont. C.A.).
[7] We agree that the impugned instruction failed to make it clear to this jury that they were obligated to keep the evidence of one complainant relevant to the counts involving that complainant separate from the evidence of the other complainant relevant only to the allegations against that other complainant. We think that the trial judge invited the jury to use the evidence relevant to the charges against each complainant in assessing the ultimate result as it relates to the other complainant. When the trial judge admonished the jury not to “jump to the conclusion that if one complainant is telling the truth the other must be telling the truth as well”, he was implicitly telling the jury that they could reach that conclusion as long as they gave the matter careful thought before doing so. In fact, the judge should have told the jury that they could not arrive at a verdict by reasoning that because one complainant was telling the truth the other complainant was also telling the truth.
[8] The trial judge also failed to caution the jury against propensity reasoning. He did not tell the jury that they could not use any conclusions they reached in respect of one complainant to conclude that the appellant was guilty on all counts because he was the type of person who would engage in sexually abusive conduct. In our view, that instruction should also have been given.
[9] As counsel for the appellant points out, the trial judge appears to have attempted to adapt the model jury instruction as it relates to cases where similar fact evidence is admitted to a case like this one where it was not suggested the evidence constituted similar fact evidence. In doing so, he failed to make the points described above. He also used the phrase “jump to the conclusion”, which while appropriate as a cautionary admonition in the context of similar fact instruction, is potentially very misleading in a case where the crown does not suggest that the similar fact evidence rule applies. Where, in a case like this, there are allegations involving more than one complainant but no suggestion that the evidence of one complainant is admissible as similar fact evidence in respect of the counts involving other complainants, trial judges should follow the direction given in R. v. M.B., supra, and subsequent cases.
[10] We are satisfied that the non-direction described above is misdirection and constitutes an error in law. The failure of counsel to object is only relevant to the possible application of the curative proviso. Crown counsel quite properly, in our view, does not suggest that the curative proviso can be applied to the errors described above. Consequently, the failure to object, while most unfortunate, does not affect the outcome of this appeal.
[11] Given the misdirection, all of the convictions must be quashed. We are also satisfied that the conviction entered on count 6 is an unreasonable verdict apart entirely from the misdirection. Consequently, we would quash all convictions, order a new trial on counts 1, 2, 3, 5 and 7, and direct an acquittal on count 6.
“Doherty J.A.”
“S.T. Goudge J.A.”
“Robert P. Armstrong J.A.”