WARNING
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. M.B., 2011 ONCA 76
DATE: 20110127
DOCKET: C50391
COURT OF APPEAL FOR ONTARIO
Laskin, Goudge and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M. B.
Appellant
Catriona Verner, for the appellant
John Pearson, for the respondent
Heard: December 7, 2010
On appeal from the conviction entered on January 15, 2008, by Justice Robert A. Clark sitting with a jury and from the sentence imposed on August 18, 2008, by Justice Robert A. Clark and from the conviction entered on June 8, 2008, by Justice Nancy J. Spies of the Superior Court of Justice.
Goudge J.A.:
[1] On January 15, 2008, after a trial by judge and jury, M.B. was convicted of one count of sexual touching and one count of sexual assault in relation to each of his two nieces, K.B. and J.B. He was subsequently sentenced to six years’ imprisonment. On June 8, 2008, after a second trial by judge alone, he was convicted of sexual touching and sexual assault in relation to his nephew C.B., for which he received a three year sentence.
[2] He appealed both his convictions and his six-year sentence in the first trial.
[3] On December 9, 2010, this court allowed his appeals from conviction and ordered new trials in each case. It was therefore unnecessary to deal with his sentence appeal. The court issued brief reasons for its decision, with fuller reasons to follow. These are those reasons.
THE FIRST TRIAL
[4] The complainants K.B. and J.B. are daughters of the appellant’s brother. On two occasions when the girls were young, the appellant lived with his brother’s family, each time for several months.
[5] K.B. and J.B. were the Crown’s only witnesses at trial. The trial judge ruled that the evidence of each could be used by the jury as similar fact evidence in evaluating the evidence of the other.
[6] Their allegations were first disclosed to their mother during a visit to the home of a family friend in 2005. At the time, K.B. was nine years old and J.B. was eleven.
[7] According K.B., she and her sister were in a room with a young girl of the family they were visiting when K.B. first disclosed that she had been “raped” by their uncle, the appellant. She said that J.B. then first disclosed that she too had been “raped” by their uncle, and immediately went to tell their mother. J.B. testified that K.B. disclosed her allegations directly to their mother while J.B. was listening, and that she then did the same.
[8] At trial, K.B.’s evidence on the sexual touching count was that on one occasion, in 2003 or 2004, the appellant came into her room in the morning, picked her up, placed her on his lap facing him, and “raped” her. She could remember very little about the incident itself. She said it hurt “a little not a lot”. She went back to sleep and when she woke had no memory of the assault. She did not bleed and had no other injuries. She did not remember the incident until a few months later.
[9] On the sexual assault count, K.B. testified that the appellant touched her legs on more than one occasion, although she was uncertain how many. Again, she recalled few details, but said that he did not stop when she told him to. She said that although she shared a room with J.B., her sister was not there during any of these incidents. J.B., on the other hand, testified not only that she witnessed the appellant touching K.B.’s legs on various occasions, but that she attempted to wake her sister during the assaults.
[10] J.B.’s evidence of sexual touching was that the appellant had sexual intercourse with her on seven occasions. She described one occasion where he put her on the counter in the bathroom and “raped” her. She said it hurt but there was no bleeding. She did not see a doctor or tell anyone about the incident. She recalled no other details and gave almost no details at all about the other six assaults except the city that they were living in when the first of these occurred. That put the incident in 1999 when she was five or six years old.
[11] On the sexual assault count, she testified that the appellant had touched her leg inappropriately on a number of occasions. In particular, he had touched her between her ankle and her knee.
[12] The appellant testified and denied ever touching either girl inappropriately.
[13] Following the address by the defence, the address by the Crown (about which more is said below) and the charge, the jury retired to deliberate. When they returned they informed the court that they could not agree on a verdict with respect to some of the counts. They were exhorted, and later returned with convictions on all four counts.
THE SECOND TRIAL
[14] At his second trial, which was before a judge alone, the appellant was convicted of sexually assaulting and sexually touching C.B., the older brother of K.B. and J.B.
[15] The Crown’s primary witness was C.B. However, the trial judge permitted the Crown to adduce the evidence of K.B. and J.B. as similar fact evidence. The appellant’s trial counsel did not require the two girls to testify again, but permitted the court to rely on the transcript of their evidence in the first trial. The appellant testified and denied C.B.’s allegations.
[16] The trial judge concluded that, without the similar fact evidence, she would have acquitted the appellant. However, she held that, as a matter of law, the appellant could not re-litigate the jury’s verdict in the first trial. She therefore accepted the jury’s findings in that trial as proof of the fact that the appellant sexually assaulted K.B. and J.B. Thus, at his second trial, the appellant was not permitted to contest the evidence of K.B. and J.B. As a result, the trial judge convicted the appellant.
THE FIRST APPEAL
[17] In the brief decision released December 9, 2010, we outlined our three reasons for setting aside the appellant’s convictions for sexual touching and sexual assault of K.B. and J.B. and ordering a new trial. The following is an elaboration of those earlier reasons.
[18] Our first reason concerns the risk of innocent collusion or influencing of each other by K.B. and J.B. in giving their accounts about what the appellant did to them.
[19] Even without deliberate tainting by others of a witness’s evidence, innocent influencing of that evidence sufficient to affect its reliability can arise in certain circumstances. In R. v. J.F. (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77, this court described the concern this way:
The trial judge’s finding that B.H. was sincere, a “straight shooter”, and not influenced by E.T. and the others, fails to take into account that collusion and discussion among witnesses can have the effect of tainting a witness’s evidence and perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns. [Emphasis added.]
[20] In this case, there are five circumstances that together raise the possibility of innocent tainting. First, there is some evidence that when they revealed what happened to them, K.B. and J.B. had an opportunity, albeit limited, to talk with each other about their experiences. Second, in describing what happened they both used identical words and phrases (“he raped me”, “he put his dick in my bumb”) that are not commonly used by young girls of that age. Indeed, in the pre-charge discussion with counsel, the trial judge indicated that he found this odd and a little disquieting.
[21] In the pre-charge colloquy, defence counsel (not Ms. Verner) appeared to be of the view that only intentional collusion entitled her to ask for an instruction on collusion. Hence she made no request for any caution on innocent tainting. She and the Crown agreed that no such caution was necessary. As a result, the trial judge limited his charge in this area to the usual similar fact warning. He instructed the jury that if they found any collaboration by K.B. and J.B., they must not use the evidence of one complainant to help decide if the other was telling the truth. There was no caution about the possibility of innocent tainting of each other by K.B. and J.B. and the relevance of that to the assessment the jury was required to make of the reliability of the evidence of each of them. In our view, such a caution was warranted in this case.
[22] Our second reason concerns whether the specific frailties of the evidence of K.B. and J.B. warranted a caution beyond the generic charge concerning youthful witnesses that they do not always have the same ability to recall past events with precision, possibly leading to certain inconsistencies in their testimony. The trial judge gave the generic instruction. Defence counsel did not ask that he caution the jury about the specific frailties they might find in the evidence given by K.B. and J.B., especially in light of their ages at the time of the events about which they testified. The trial judge did not address this issue.
[23] However, there are a number of particular aspects of their evidence that cause concern. For K.B., these include that the “rape” she described hurt only a little and caused no injury despite her very young age; that she went back to sleep right afterwards; that she remembered nothing for a month; that she could not say on how many occasions the appellant touched her on the leg; and that for all the alleged occurrences she could remember very little detail.
[24] For J.B., there was a similar absence of any detail. She also testified that she often slept in her parents’ bedroom to avoid the appellant. As the trial judge said, this was odd, since she also said she was in her own bedroom on various occasions when the appellant was allegedly rubbing her sister’s legs and tried to wake her sister during these assaults.
[25] These frailties were captured by the trial judge in making his findings of fact necessary to sentence the appellant. He summed up his concerns this way:
Again, while I do not wish to be taken as saying that I disbelieve their evidence, I am sufficiently troubled by the evidence of the two young girls, particularly that of J.B., that I am reluctant to rely on their accounts beyond the extent to which I am bound to do so by the jury’s verdicts.
[26] In these circumstances, it is our view that a specific caution was warranted to outline for the jury the risks of accepting the evidence of these young complainants. As McLaughlin J. pointed out in R. v. Marquard, 1993 CanLII 37 (SCC), [1993], 4 S.C.R. 223, at p. 239, while the evidence of children is not to be approached from the perspective of rigid stereotypes, there will be cases where the particular evidence given by a particular child witness is such that failure to give such a caution will raise the spectre of an injustice and may therefore result in reversible error.
[27] The third reason for our decision is the most important. It concerns the closing address by the Crown.
[28] The first aspect of that address that causes concern is the highly emotive and inflammatory language used by the Crown. The appellant was described as a “predator”, and the incidents as “terrifying”, “horrifying to imagine”, “horrifying events”, “unspeakable” and “horrific sexual abuse”. This kind of rhetoric has absolutely no place in the closing address of the Crown. Such an appeal to passion seeks to completely deflect the jury from their proper role, to dispassionately assess the evidence they have heard.
[29] After the Crown concluded, and to his credit, the trial judge in the absence of the jury severely chastised the Crown. The defence did not move for a mistrial. Nonetheless, the trial judge agonized during the lunch break over whether to order a mistrial on his own motion. He ultimately decided not to, feeling that he could undo the damage with his instructions to the jury. He concluded his charge with a very strong direction to the jury to pay no attention to these aspects of the Crown’s address.
[30] If that were the only problem with the address we would not be quite so concerned. However, there is another particularly troubling aspect of the Crown’s closing. It is the way the Crown addressed the issue of the complainants’ motive for revealing their stories about what their uncle had done to them. The Crown told the jury that no reason for the girls fabricating these allegations emerged because there was no such reason since the girls were telling the truth. She said this:
However, it’s not improper for me to ask you to reflect on the fact that no reason emerged as to why J.B. or K.B. would fabricate these horrible allegations. I would submit to you no apparent motive was revealed from their evidence or their admissions, because quite frankly there isn’t one, the girls are telling the truth.
[31] The concern raised by these submissions is aptly captured by the words of this court in R. v. L.L. (2009), 2009 ONCA 413, 244 C.C.C. (3d) 149 (Ont. C.A.), at para. 42:
The difficulty with these comments is twofold. First, they appear to suggest that the Crown proved lack of motive to fabricate when the evidence was not capable of supporting such a finding. Second, by asking highly emotive rhetorical questions concerning why the complainant would create various negative consequences for herself, the Crown created a risk that the jury would jump to a conclusion that the complainant must be telling the truth if there was no demonstrated motive to lie.
[32] The court went on at para. 53 to outline the minimum corrective instruction that should be given in such circumstances:
At a minimum, the corrective instructions should have addressed the following matters:
• Because a person’s motives can sometimes be hidden, there is a difference between absence of apparent motive and proven absence of motive;
• Although the defence had raised some possible motives for the complainant to fabricate her evidence, depending on their view of the evidence, it was open to the jury to find an absence of any apparent motive on the part of the complainant to fabricate;
• Although absence of apparent motive to fabricate is a proper factor to consider in assessing the credibility of the complainant, it is but one of many factors to be considered; and
• Whatever their view of the evidence relating to the complainant’s motive to fabricate, it was essential that the jury bear in mind that the accused has no obligation to prove a motive to fabricate and that the onus remains on the Crown throughout to prove guilt beyond a reasonable doubt.
[33] The trial judge did not have the benefit of this court’s judgment in R. v. L.L. and no such instruction was given.
[34] As we indicated in our earlier reasons, we are of the view that the cumulative impact of these various errors is such that the appellant cannot be said to have received a fair trial. His convictions must be set aside and a new trial ordered.
THE SECOND APPEAL
[35] As we said in our earlier reasons, and as the Crown fairly acknowledged, the trial judge in the appellant’s second trial erred in law in holding that the jury’s verdict in his first trial put beyond his challenge in his second trial the evidence of K.B. and J.B. that the appellant had sexually assaulted them. That holding was legally wrong because in criminal law the principle of issue estoppel cannot be permitted to be used to free the Crown from proving every element of its case beyond a reasonable doubt. In R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, McLachlin C.J. put it this way at para. 57:
Mutuality, at its most basic level, simply means that the parties in the two proceedings must be the same: see CUPE; H. Stewart, “Issue Estoppel and Similar Facts” (2008), 53 Crim. L.Q. 382, at p. 383. It has sometimes been understood, however, in the broader sense of requiring that the principle of issue estoppel apply to both parties in identical fashion. In this sense, mutuality has never been part of Canadian criminal law, which recognizes that the presumption of innocence and the requirement that the Crown must prove every element of its case beyond a reasonable doubt trump issue estoppel. Where the Crown seeks to estop an accused from contesting this innocence based on decisions against the accused in prior criminal proceedings, the claim for estoppel will fail. To permit the Crown to rely on issue estoppel in these circumstances would offend the presumption of innocence and the requirement that the Crown in a criminal proceeding bears the burden of proving its case beyond a reasonable doubt.
[36] The trial judge relied on the similar fact evidence of K.B. and J.B. to convict and made clear that without that evidence she would not have done so. This error therefore requires that the appellant’s conviction be set aside and a new trial ordered.
[37] In summary, for these reasons, both appeals are allowed, the convictions set aside and new trials are ordered.
RELEASED: JAN 27 2011 (“J.I.L.”)
“S.T. Goudge J.A.”
“I agree. J.I. Laskin J.A.”
“I agree. G.J. Epstein J.A.”