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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.A.T., 2012 ONCA 177

DATE: 20120321

DOCKET: C49796

O’Connor A.C.J.O., Watt and *Karakatsanis JJ.A.

BETWEEN

HER MAJESTY THE QUEEN

Respondent

and

J. A. T.

Appellant

John M. Rosen and Emily Lam, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: September 27, 2011

On appeal from the conviction entered on February 12, 2007, and the sentence imposed on June 6, 2008, by Justice Janet Wilson of the Superior Court of Justice, sitting with a jury.

Watt J.A.

[1] Four sisters accused J.T. (the appellant), their mother’s common law partner, of serially sexually abusing them for nearly a decade. J.T. said nothing of the sort happened.

[2] A jury heard the sisters’ allegations, then the appellant’s denials. M.C., the complainants’ mother, did not testify. The jury believed the complainants and not the appellant, whom they convicted of every offence with which he was charged.

[3] The appellant says that his trial was unfair, his convictions a miscarriage of justice, because the trial judge permitted the trial Crown to introduce a lot of inadmissible evidence. Hearsay. Bad character. Opinion. Prior consistent statements. To make matters worse, the appellant says, the trial judge failed to give the jury essential limiting instructions to confine their use of admissible evidence to what the law permits, and to tell them not to use what had been wrongly admitted.

[4] The reasons that follow explain why I think it is necessary to have these allegations tried again.

THE BACKGROUND

[5] The disposition I propose for this appeal favours a brief overview of the nature of the relationship among the principals with only enough specifics to understanding and resolve the claims of error.

The Principals

[6] In the early 90s, the appellant dated, then moved into the home of M.C. The household included M.C.’s four daughters, in descending order of age, M.R.F., E.F., M.F. and N.F.

[7] When he joined M.C.’s household, the appellant was unemployed. He made no financial contribution to the household, yet didn’t hesitate to impose rules on the children about shower times, computer and television use, household chores and other duties and obligations.

[8] The relationship between the appellant and the children quickly deteriorated. To them, the appellant was a lazy, shiftless, mooch. He sponged off their mother. He didn’t work. He imposed rules. He administered discipline without any moral or other authority to do so.

The 1994 Allegations

[9] On March 27, 1994, the appellant was charged with sexual assault on M.R.F. and assault on E.F. and N.F. The appellant left the family home for a period of time.

[10] Later in 1994, M.R.F. recanted her allegations. She claimed that her biological father had put the idea in her head when she had visited him in Portugal. She said that she made the allegations to get the appellant out of their home.

[11] In her recantation, M.R.F. also acknowledged that she had told her sisters, E.F. and N.F., to lie about physical assaults by the appellant. Like M.R.F., both E.F. and N.F. recanted their allegations later in 1994.

[12] As a result of the recantations by the complainants, Crown counsel withdrew all charges against the appellant. Shortly after the withdrawal of the charges, the appellant returned to M.C.’s home to reside with her and her four daughters.

The 1999 Report

[13] On May 6, 1999 the appellant and E.F. had an argument. E.F. told her mother that the appellant had been having sex with her. M.C. confronted the appellant. The appellant denied E.F.’s claims. M.C. expelled the appellant from their home. Before long she readmitted him.

[14] According to E.F., when the appellant returned to their home, he stopped his sexual abuse of her. No one contacted the police about these allegations, and thus no charges resulted.

The 2001 Incident and Mutual Peace Bonds

[15] On May 7, 2001 the appellant and E.F. had another fight. This time, police responded. E.F. was charged with assault with a weapon, a candle stick. The appellant was charged with assault. E.F.’s allegations made no mention of sexual assault.

[16] Later in 2001, the appellant and E.F. entered into peace bonds. The assault charges were withdrawn.

The Relationship Ends

[17] In August 2001, the appellant’s relationship with M.C. ended. Early that month, M.R.F. told E.F. that she thought that the appellant was abusing M.F. E.F. confronted M.F. with her sister’s suspicions. At first, M.F. denied any abuse. Then, E.F. told M.F. that the appellant had abused her (E.F.) and that she (E.F.) had made an appointment for M.F. to see a doctor. M.F. eventually agreed that the appellant had abused her.

[18] E.F. told her mother about the appellant’s abuse of M.F. According to E.F., M.C. confronted the appellant with the allegations. The appellant fled from their home.

[19] The appellant denied any such confrontation. He said that he ended his relationship with M.C. just before he left on planned trip to Peru on August 24, 2001.

[20] The appellant returned to Canada in December 2001, but he never returned to M.C.’s home.

The Investigation

[21] Later in August 2001, E.F. took M.F. to a doctor who referred M.F. to the Suspected Child Abuse and Neglect (“SCAN”) Unit at the Hospital for Sick Children. A nurse at the SCAN unit called the Catholic Children’s Aid Service (“CCAS”) who, in turn, contacted police who began an investigation. Each complainant gave a statement to police alleging sexual abuse by the appellant over several years.

[22] The appellant was arrested in May 2003, about 18 months after he had returned to Canada from Peru.

The Positions of the Parties at Trial

[23] The trial Crown (who was not counsel on the appeal) contended that each complainant was a credible witness who provided reliable evidence about sexual abuse by the appellant.

[24] The trial Crown argued that the appellant abused his position of trust and authority with each complainant. Systematically, by violence and threats, the appellant coerced each complainant to have sexual contact, up to and including sexual intercourse, with him. The 1994 recantations were false, induced by by pressure applied to the complainants by their mother, M.C., including but not limited to her suicide attempt.

[25] The trial Crown submitted that, emboldened by the withdrawal of charges in 1994, the appellant continued his sexual abuse of various complainants who derived no support from their mother. Eventually, after mutual disclosures in August 2001, and M.F.’s visit to the doctor at E.F.’s insistence, the appellant fled to Peru when confronted by M.C. about the allegations.

[26] Trial counsel for the appellant (who is also not counsel on appeal) contended that the complainants’ allegations were fabrications, born of animus towards and resentment of the appellant. The complainants resented the appellant’s intrusion into their family. They disliked his rules. They considered him a mooch because he contributed nothing to the household.

[27] At trial, the appellant submitted that allegations of M.R.F. of sexual abuse, and by E.F. and N.F. of physical abuse in 1994, were fabricated. Significantly, E.F. did not allege sexual interference in 1994, although she would later claim that sexual misconduct began in 1993. The complainants realized they had gone too far when their mother attempted suicide. Their recantation was truthful.

[28] The appellant contended that in 2001 the complainants found out that the appellant had secretly purchased a home for his parents, all the while contributing nothing to M.C.’s household. He had also found a videotape depicting E.F. having sex with her boyfriend. The appellant told M.C. that their relationship was over. M.C. was devastated. Out of vengeance, the complainants colluded, like they did in 1994, to falsely accuse the appellant of years of sexual abuse.

[29] Much of the evidence that forms the subject of this ground of appeal was admitted without objection at trial. Further, trial counsel did not complain about the trial judge’s treatment of it in her final jury instructions.

The Sentencing Proceedings

[30] The appellant has also applied for leave to appeal the sentences imposed by the trial judge. The conclusion I have reached on the appeal from conviction makes it unnecessary to consider the sentence appeal.

THE GROUNDS OF APPEAL

[31] The appellant alleges several errors in the reception of evidence and corresponding deficiencies in the jury instructions. I would consolidate and paraphrase the complaints as errors in:

i. admitting evidence of the appellant’s extrinsic misconduct and bad character and failing to instruct the jury about the limited use that they could make of any of this evidence that was properly admitted;

ii. admitting hearsay evidence of statements made by the complainants and third parties and failing to properly instruct the jury about the limited use that could be made of any of this evidence that was properly admitted;

iii. admitting evidence, principally of prior consistent statements and opinions of others supportive of the credibility of the complainants and the guilt of the appellant, and failing to provide appropriate instructions to the jury about the limited use they could make of this evidence; and

iv. admitting evidence of the appellant’s after-the-fact conduct and of his exercise of his right to remain silent, and failing to provide adequate instructions to the jury about their use of this evidence.

analysis

Ground #1: Extrinsic Misconduct and Bad Character Evidence

[32] The sweep of the appellant’s complaint about the wrongful admission of and inadequate instructions about evidence of extrinsic misconduct and bad character requires a brief reference to the evidence in issue and to what the judge said about it in mid-trial and final instructions.

The Evidentiary Background

[33] To determine the legitimacy of this claim of error does not require a forced march through the thicket of evidence of extrinsic misconduct and bad character that was a persistent feature of the appellant’s trial. The principal complaints have to do with evidence that the appellant:

i. physically and emotionally abused the complainants and their mother to satisfy or obtain compliance with his demands for sex;

ii. destroyed property in the home;

iii. spied on the complainants in the shower;

iv. had a video of E.F. having sex with her boyfriend;

v. recorded telephone conversations M.R.F. had with a friend and hacked into M.F.’s internet chat program;

vi. “hit on” the complainants’ friends;

vii. violated a no-contact order with the complainants;

viii. lied to the court in prior proceedings; and

ix. was a lazy, shiftless mooch who did not work, sponged off M.C., and squirreled away any money he did earn to buy a house for his parents.

[34] The jury also heard evidence about the allegations made and later recanted in 1994. Several witnesses testified about these events including the complainants, their aunt, M.G., and the CCAS worker assigned to the file, M.P.

The Instructions of the Trial Judge

[35] M.G., the complainants’ aunt, gave evidence about the allegations of sexual interference made against the appellant in 1994. Trial counsel for the appellant objected to the reception of this evidence. She argued that it was not relevant to any issue before the jury. The trial judge disagreed. She acknowledged that the proposed evidence was not relevant to prove that the appellant committed the sexual assaults alleged in 1994, but considered it relevant to the complainants’ credibility that had been attacked already by the appellant.

[36] Before M.G. described any contact she had with the complainants about their 1994 allegations, the trial judge instructed the jury:

Before this witness gives her evidence I just want to make it clear to you, ladies and gentlemen, you’ve heard quite a bit through both the Crown and through defence counsel with respect to the 1994 charges and the subsequent recanting of the charges by three of the complainants. I want to make it clear to you that the reason that the Crown is calling this witness is not for you to decide whether the 1994 charges have been proved. That’s not before you. What is before you is whether the charges that are outstanding that have been read aloud at the beginning of this trial have been proved.

The issue with respect to 1994 has been raised as a matter of credibility of the complainants; that they originally made a statement and they recanted it. And the purpose of calling this witness is to assist you in assessing that issue with respect to credibility, to give you a better and fuller understanding of that incident. But you’re not to embark upon deciding whether or not Mr. [T.] is guilty with respect to the 1994 charges which were withdrawn. So this is relevant to the issue of credibility and to explain some background which may assist you in assessing the credibility and understanding the 1994 incident. But you’re not to embark upon a trying of those issues.

[37] The trial judge provided counsel with a written copy of her proposed final instructions, which included is a passage about the 1994 allegations:

We have heard a great deal of evidence about what happened in 1994. It is important that you realize those charges are not before the Court and were withdrawn. They are before you for one purpose and one purpose only, that is, to assess the credibility of the witnesses in this case.

Fabrication is the making up of evidence. Collusion is intentionally or accidentally allowing complainants to change or modify their stories in order that their testimony would seem more convincing or more similar.

The evidence with respect to the 1994 charges is relevant to the credibility of the complainants. It may also be relevant in your assessment of the credibility of Mr. [T.]. Again, you are not here to determine whether the 1994 charges have been proved because they were withdrawn.

There is evidence in the CAS notes that the complainants [R.], [E.] and [N.] told the CAS that they had lied about their original allegations made to the police when they subsequently recanted. [E.] and [N.] told the CAS worker that their sister [R.] told them to lie. It is the evidence that is relied upon by the defence.

It is the Crown’s position that this evidence must be placed in context and that context confirms the dominance and control of Mr. [T.] in the household.

[38] In a brief recharge at the request of the appellant’s counsel, the trial judge added:

I reiterate that all of the evidence with respect to the 1994 involvement of the police and the CAS is relevant to the issue of assessment of credibility and provides some context with respect to the recantation.

[39] In this case, the trial judge instructed the jury that they could not use evidence relevant to the offence charged in one count in assessing the adequacy of the Crown’s proof on another count. The instruction recited the presumption of innocence and advised jurors that their verdict on any count depended on their assessment of the evidence relating to that count and of any evidence relating to the credibility of the complainant on that count. The trial judge pointed out that for each count, the fundamental issue was whether the conduct alleged by the complainant actually happened.

[40] The trial judge told the jury that they could not use their verdict on one count to help them determine whether the offence alleged in any other count had been proven beyond a reasonable doubt. Nor did the jurors’ belief of one complainant dictate an equivalent conclusion with respect to any other complainant. Further, the trial judge explained, the jurors were not permitted to use their belief of the allegations of one complainant as evidence of his guilt in relation to any other complainant.

[41] The jurors received a written copy of the charge.

The Arguments on Appeal

[42] For the appellant, Mr. Rosen submits that the evidence of bad character and extrinsic misconduct admitted at trial fell into four broad categories:

i. the 1994 allegations;

ii. the appellant’s violent and domineering behaviour;

iii. the basis for the complainants’ dislike of the appellant; and

iv. other extrinsic misconduct and bad character that was

inadmissible.

[43] Mr. Rosen acknowledges that much of the evidence in categories i – iii, was properly admissible for specific purposes: to impeach the complainants’ credibility, to explain their compliance with the appellant’s demands or to demonstrate a motive to fabricate allegations against the appellant. The error here, Mr. Rosen says, is that the trial judge failed to properly identify the permitted use of the evidence and never told the jury about the prohibition against propensity reasoning.

[44] As for category iv, Mr. Rosen submits that some of the evidence was neither relevant nor admissible. To make matters worse, the trial judge recited this evidence in her charge, but failed to instruct the jury that consideration of it should form no part of their deliberations.

[45] For the respondent, Ms. Bartlett-Hughes takes a contrary position. She points out that not only was no objection taken to much of the evidence about which the appellant now complains, but significant portions of it were adduced by defence counsel to support the appellant’s position as advanced at trial. The appellant cannot have it both ways and, on appeal, wriggle out of a tactical decision made by experienced trial counsel.

[46] The respondent points out that the evidence of extrinsic misconduct and bad character was inherently less prejudicial than the allegations contained in the indictment. The jury was instructed expressly that they could not use evidence given by any complainant to determine the appellant’s guilt on any count relating to any other complainant. The jurors would understand from this prohibition that they could not use any of the evidence of extrinsic misconduct to complete proof on any count.

[47] The respondent says that, in combination, the mid-trial and final instructions about the relevance of the 1994 allegations properly confined their use to what was legally permissible and enjoined improper use. Added to the express prohibition against application across counts of the evidence of other complainants, the prospect of propensity reasoning contaminating the jurors’ deliberations is not realistic.

The Governing Principles

[48] The principles that govern the determination of this ground of appeal are those that govern reception of evidence of extrinsic misconduct and its use by the trier of fact.

[49] It is fundamental that to be receivable in a criminal trial, evidence must be relevant, material and admissible. When one party contends that evidence proffered by another party is irrelevant, immaterial or inadmissible, that party should object to the proffer on specific grounds: I Wigmore on Evidence (Tillers Rev.), §18, at p. 790; Kenneth S. Broun et al., 1 McCormick on Evidence, (6th ed.) (USA: Thomson/West, 2006), §52, at p. 253. When objection is taken to the relevance, materiality or admissibility of an item of evidence, the task of the trial judge is to determine the validity of the objection and, in turn, the receivability of the evidence.

[50] A judge presiding over a criminal jury trial has a duty to ensure that only relevant, material and admissible evidence gets before the jury: R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at pp. 735-736; R. v. Hawkes (1915), 1915 CanLII 347 (AB SCAD), 25 C.C.C. 29 (Alta. S.C., A.D.), at p. 34. Further, where evidence of limited admissibility is received, the presiding judge has an obligation to instruct jurors about the permitted and prohibited use of that evidence: B. (F.F.), at pp. 733-734; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 184; R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at paras. 106-197. Where inadmissible evidence seeps into a criminal jury trial, the trial judge should instruct the jury in such a way to ensure that the evidence is not misused in the jury’s decision-making: R. v. A. (J.) (1996), 1996 CanLII 1201 (ON CA), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 537.

[51] Evidence of an accused’s extrinsic misconduct that shows only that she or he is the type of person likely to have committed an offence with which she or he is charged is inadmissible: B. (F.F.), at p. 730; R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at pp. 201-202. On the other hand, evidence that tends to show from extrinsic misconduct that an accused is a person of bad character, but that is also relevant and material, falls outside the general exclusionary rule, provided its probative value exceeds its prejudicial effect: B. (F.F.), at pp. 730-731; Morris, at p. 202; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 735.

[52] The inherent prejudicial effect of evidence of extrinsic misconduct can infect a jury’s deliberative process in three main ways:

i. the jury may assume, from its acceptance of the evidence of extrinsic misconduct, that an accused is a “bad person”, thus likely to be guilty of the offences charged;

ii. the jury may tend to punish the accused for the extrinsic misconduct by finding him or her guilty of the offences charged; and

iii. the jury may become confused by the evidence of extrinsic misconduct, their attention deflected from the main purpose of the trial, the offences charged, and substitute their conclusion on the extrinsic misconduct for their verdict on the indictment they are trying.

See, R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128. Inherent in evidence of extrinsic misconduct are both moral and reasoning prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31; and R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 64.

[53] Where evidence of extrinsic misconduct is admitted exceptionally in a criminal jury trial, the chief work of mid-trial and final instructions is prophylactic: to confine jury use of this evidence to its permitted purpose and to abjure prohibited reasoning: B. (F.F.), at pp. 707-708 and 733-735. These limiting instructions, whether given as mid-trials or as finals, should contain three elements:

i. a description of the evidence to which the instruction applies;

ii. a positive instruction advising the jury about the use they may make of the evidence (the permitted use); and

iii. a negative instruction directing the jury about the use they must not make of the evidence (the prohibited use).

Largie, at paras. 106-107.

[54] Whether evidence of extrinsic misconduct will be admitted by exception is determined by the application of principle, not pre-ordained by inclusion in or absence from a closed list of exceptions. Evidence of extrinsic misconduct may be admitted to demonstrate a system of violent control over others, thus to explain why abuse could occur and continue unabated and unreported: B. (F.F.), at p. 732. The evidence may also be admitted as part of the narrative to provide context for other events, as well as to establish motive or animus: R. v. F. (D.S.) (1999), 1999 CanLII 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.), at paras. 22-24; R. v. S. (P.) (2000), 2000 CanLII 5706 (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.), at para. 31; and R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453, at para. 46. In each case, the evidence of extrinsic misconduct must be relevant to some material issue, other than propensity, and be more probative of that issue than prejudicial through impermissible propensity reasoning.

[55] In a trial involving several complainants and counts, but without evidence of similar acts, a trial judge should instruct the jury not only that they are not entitled to use the evidence relating to a particular count in deciding whether guilt has been proven on any other count, but also that they are not entitled to use the evidence relating to any other count to conclude that the accused is a person of bad character likely to have committed any offence charged: R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at para. 42; R. v. Rarru, 1996 CanLII 195 (SCC), [1996] 2 S.C.R. 165, at pp. 165-166; R. v. W. (L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) at para. 93.

The Principles Applied

[56] In two respects, this ground of appeal succeeds. First, some but not all of the evidence to which objection is now taken should not have been admitted for any purpose. Second, the jurors did not receive adequate instructions about the limited use they could make of the evidence that was properly admitted, or any instructions about the impropriety of relying upon evidence that should not have been admitted.

[57] Evidence of the relationship among the principals permeated the trial. The evidence included testimony that the appellant threatened suicide to manipulate the complainants into having sex with him, assaulted the complainants, destroyed things in the home, threatened and abused the complainants’ mother, spied on the complainants in the shower, and infringed their privacy in other ways.

[58] Both parties relied on this evidence at trial. Defence counsel adduced or further developed much of it in cross-examination.

[59] The trial Crown pointed to this evidence to support his assertion that this conduct explained the apparent compliance of the complainants with the appellant’s demands for sex and accounted for the delay in disclosure.

[60] Defence counsel relied upon the same evidence to argue that the complainants had a motive to fabricate their allegations against the appellant, as they had done in 1994: an animus towards him engendered by the reign of terror he conducted in their household. The complainants bristled at this controlling behaviour. They put their heads together to falsely accuse the appellant in order to be rid of him.

[61] Much of the evidence of extrinsic misconduct to which objection is now taken involved conduct markedly less serious than what underlies the offences charged. Further, a great deal of this evidence was relevant and properly admissible in support of the positions advanced at trial. But some was neither relevant nor admissible.

[62] Evidence that the appellant

i. breached court orders prohibiting contact with the complainants made in connection with the 1994 allegations;

ii. breached the terms of a peace bond entered into in order to resolve prior assault charges involving E.F. in 1999; and

iii. lied under oath in prior court proceedings

was neither relevant nor admissible. This evidence created both moral and reasoning prejudice that was not overborne by any probative value on a material issue. Its introduction created a palpable danger that jurors would convict the appellant based on “bad personhood” and that they would be distracted from the task at hand by allegations of perjury and breaches of earlier court orders.

[63] Evidence that is inadmissible, but apt to foster moral or reasoning prejudice, should attract a curative instruction, at least as general rule. The instruction should identify the evidence to which it applies, then instruct jurors that this testimony is not an item or piece of evidence for them to consider in reaching their verdict and has nothing to do with their decision on whether Crown counsel has proven the guilt of the accused beyond a reasonable doubt.

[64] The trial judge provided no curative instruction about the evidence summarized in paragraph [69] above. Thus, in a case of oath against oath, denial against allegation, the jurors heard that the appellant had lied under oath and disobeyed court orders on at least two prior occasions.

[65] Evidence that is admissible for one purpose, but not for another, attracts a limiting instruction that explains the permitted and enjoins the prohibited use of the evidence. The rule is of general, but not unyielding application.

[66] This case involved several events and four different complainants. The jurors heard evidence not only of the conduct that constituted the basis of the offences charged, but also about uncharged misconduct and the appellant’s other morally reprehensive behaviour over nearly a decade. In this evidentiary swamp, the risk of jurors’ submersion in moral prejudice was palpable, absent proper instruction.

[67] This case required more than an instruction that the jurors were to consider each count separately and that they were not to use evidence relating to one count or complainant, or the verdict rendered on one count, as evidence on any other count or in relation to any other complainant. What was also essential, and what this charge lacked, was an instruction that jurors must not rely on the evidence on other counts or of other uncharged or disreputable conduct as proof that the appellant was the sort of person who would or was likely to commit the offences charged: Rarru, at pp. 165-166; M. (B.), at paras. 41-42; R. v. M. (D.) (1999), 1999 CanLII 1839 (ON CA), 136 C.C.C. (3d), 412 (Ont. C.A.), at para. 10; and W. (L.K.), at paras. 92-93.

[68] The instruction that prohibited use across counts of evidence and verdicts on other counts was correct as far as it went. But it did not go far enough to prohibit propensity reasoning or to remove the moral prejudice engendered by the evidence on the other counts and of uncharged conduct and morally reprehensible behaviour.

[69] The impact of the improper admission of evidence of extrinsic misconduct and of non-direction on the prohibition against propensity reasoning can await an assessment of the merits of the other grounds of appeal raised by the appellant.

Ground #2: The Admissibility and Use of Out-of-Court Statements

[70] The appellant also complains about the reception of evidence of out-of-court statements by the complainants and others, and the manner in which any admissible shards of this evidence were left for the jurors for use during their deliberations.

[71] The assault on admissibility invokes a mélange of exclusionary rules including hearsay, bad character and prior consistent statements. The complaint about deficiencies in jury instructions asserts both errors and omissions in advising jurors about prohibitions and restrictions on their use of this evidence.

The Background

[72] The principal architects of these evidentiary infractions were two prosecution witnesses: M.G and M.P.

[73] M.G. was M.C.’s sister, the complainants’ aunt. She gave evidence about the 1994 allegations and the family dynamic. She was a difficult witness. She disliked the appellant. Crown counsel at trial did little to ensure that her responses to his sometimes shapeless[^1] questions did not stray beyond the boundaries marked by the rules of admissibility. Her lengthy and rambling answers included frequent excursions into areas designated “no trespassing” by the rules excluding hearsay, bad character and prior consistent statements.

[74] Some examples, will illustrate.

[75] M.G. testified that when N.F. was four or five years old in 1994, she (N.F.) told her that she was scared. When N.F. was asked to explain why she was scared, N.F. told her aunt that she had seen her mother, M.C., and J.T. having sex in their bedroom with the door open. She then saw J.T. in the kitchen wearing a pair of shorts, his penis exposed. N.F. told M.G. that J.T. made her touch his exposed penis. M.G. told N.F. not to let J.T. touch her (N.F.) or any of her sisters and to report any of these incidents to her mother, aunt or someone whom N.F. trusted. N.F. told M.G. that she had told her mother about what happened with J.T. but that her mother, M.C., didn’t believe what her daughter told her.

[76] The conduct described in the evidence of M.G. was not something about which N.F. testified and was outside the time period described in the indictment.

[77] M.G. also described an incident that occurred on M.R.F.’s confirmation day in the kitchen of the house where the complainants, M.C. and J.T., lived. M.G. and her daughter were there, but M.G.’s husband refused to attend because he didn’t like J.T. and thought that J.T. should not be living at M.C.’s home. J.T. touched M.R.F.’s face then rubbed her breast with his hand. M.R.F. told J.T. to leave her alone. When M.G. reported the incident to her sister, M.C. paid no attention to what M.G. told her.

[78] M.G. spoke to M.R.F. about what she had seen. According to M.G., M.R.F. said that J.T. touched her often. He also watched the girls in the shower and in their bedrooms. He insisted that the doors to the bathroom and bedrooms remain open while the complainants were in those rooms. When M.G. asked her niece about whether she had complained to her mother about what J.T. was doing, M.R.F. replied that she had told her mother about the incidents, but that M.C. did not believe her.

[79] M.G. recounted an incident that occurred about two to three weeks after she had spoken to M.R.F. about J.T. touching her breasts. One Saturday morning, M.R.F. showed up at M.G.’s house shoeless and wearing a ripped shirt. M.R.F. reported that she had had a big fight with J.T. because she (M.R.F.) resisted J.T.’s sexual advances, and his attempt to have sexual intercourse with her. M.R.F. stayed at M.G.’s home briefly after she and M.G. reported what occurred to the police, who later laid charges.

[80] M.G. testified that the complainants did not want M.G. to contact them. The complainants told M.G. that if J.T. knew they had spoken to their aunt, he would cut off N.F.’s head.

[81] Counsel for the appellant at trial objected to the reception of evidence about the 1994 incidents. The trial judge permitted the evidence to be given to rebut the defence submission that the complainants should not be believed because they had recanted their allegations in 1994.

The Instructions of the Trial Judge

[82] The trial judge became concerned about the manner in which Crown counsel was adducing evidence from M.G. The trial judge specifically mentioned the introduction of hearsay. She admonished Crown counsel for not controlling the witness. The trial judge then allowed Crown counsel to conduct what remained of the examination-in-chief of the witness by asking M.G. whether she had made and adopted as true notes prepared by a CCAS worker in 1994. Crown counsel read the notes aloud in the presence of the jury, asked M.G. first whether she had said what the author had recorded, and then had M.G. confirm the truth of their contents.

[83] In a mid-trial instruction, the trial judge told the jurors to ignore M.G.’s evidence about conversations she had with the complainants “because some of her evidence was hearsay evidence” and not admissible. She explained to the jurors what to expect next:

I’m trying to balance the case between the Crown and Defence. But I am going to allow the Crown to go through the CAS notes, which will involve some hearsay evidence but it was recorded by the CAS worker at the time in 1994, just so that you have that whole context to assess the credibility issue. Okay? So I am going to let Crown Counsel with that warning to you. And if an issue arises, Defence Counsel, I expect you to be on your feet.

[84] The trial judge did not repeat this or an equivalent instruction in her charge to the jury.

The Arguments on Appeal

[85] As he began his submissions on this ground, Mr. Rosen pointed out that the trial judge admitted evidence about the 1994 allegations over the objection of trial counsel. The trial judge considered that counsel had put the 1994 allegations in issue because she had subpoenaed records from CCAS and relied on the recantations in 1994 to support her position that the complainants had once again colluded to falsely accuse the appellant of sexual offences.

[86] Mr. Rosen says that even if the defence position at trial permitted introduction of some evidence about the 1994 allegations and the complainants’ recantation of them, nothing permitted the reception of inadmissible hearsay, evidence of bad character or contraventions of the rule against prior consistent statements.

[87] The limiting instruction, Mr. Rosen submits, did not go far enough. The direction related only to the complainants, not to the remarks attributed by M.G. to M.C. It also failed to enjoin propensity reasoning. Further, the statements M.G. attributed to the complainants were not admissible under the recent fabrication exception to the rule excluding prior consistent statements because they were made after, not before, the motive to fabricate arose. Nor did the trial judge give any limiting instructions about the permitted and prohibited use of prior consistent statements of a witness.

[88] Ms. Bartlett-Hughes takes a contrary position. She says that trial counsel for the appellant raised the issue of the 1994 complaints and their recantation in cross-examination of the complainants. The defence position was that, having colluded once to put together a false story in 1994, then truthfully recanting it, the complainants were doing the same thing in 2001.

[89] According to Ms. Bartlett-Hughes, Crown counsel at trial relied on the complaint history to rebut the appellant’s claim that the complainants had independent or different reasons for fabrication in 2001: the appellant had deserted their mother, contributed nothing while living with them and had bought a home for his mother with money saved by freeloading at their home. Besides, the appellant had relied on inconsistencies in the complainants’ accounts, thus Crown counsel was entitled to adduce evidence that demonstrated their consistency on other points.

[90] Ms. Bartlett-Hughes says that these prior statements were not admitted to establish the truth of anything said, thus did not engage the hearsay rule. The trial judge never told the jury that the statements could be used for a hearsay purpose. They were properly admissible as narrative and to establish context.

The Governing Principles

[91] This ground of appeal engages several fundamental rules of admissibility. Each requires brief, but not extended, examination.

[92] It is elementary that a party who calls a witness should ensure, to the extent possible, that the witness gives evidence that is relevant, material and admissible in the proceedings. The trial judge has an overarching responsibility, above and beyond that imposed on counsel, to safeguard the trial process against intrusion by evidence that is irrelevant, immaterial or inadmissible: Hawkes at p. 34.

[93] As a general rule, the party who calls a witness is not permitted to ask the witness leading questions, in other words, questions that, by their terms, suggest the answer the witness should give: R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 53 O.R. (3d) 417(C.A.), at para. 9. Flexibly applied, the rule cedes ground to expediency and permits a party to ask leading questions of its own witness on preliminary and non- controversial issues and, where necessary, to direct the witness to a particular event or subject-matter: Rose, at para. 9. A trial judge also has a general discretion to allow leading questions whenever it appears necessary in the interests of justice: Reference Re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, at p. 213.

[94] Critical to the operation of the admissibility rule that excludes hearsay is the element of purpose. The purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when the statement is tendered to prove the truth of its contents that the exclusionary rule is implicated and the need to test the statement’s reliability arises: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 36. Out-of-court statements tendered to prove something other than the truth of their contents do not engage the exclusionary rule: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at pp. 661-662; R. v. Kirkby (1985), 1985 CanLII 3646 (ON CA), 21 C.C.C. (3d) 31 (Ont. C.A.), at pp. 53-54.

[95] Evidence of threats may be admissible as non-hearsay since it is the making of the threats, not their truth, that is of probative value: Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), at p. 970. But evidence of a witness’ prior out-of-court statements tendered to prove the truth of their contents is hearsay and presumptively inadmissible: Khelawon, at para. 36.

[96] Another exclusionary rule prohibits introduction of prior consistent statements made by a person called as a witness at trial. Once again, the exclusionary rule is of general, but not unyielding application: R. v. Stirling 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. The principal justifications underlying the exclusionary rule are that prior consistent statements lack probative value and constitute inadmissible hearsay if tendered to prove the truth of their contents: Dinardo, at para. 36; Stirling, at para. 5; and Ellard, at para. 31.

[97] Among the recognized exceptions to the rule generally excluding prior consistent statements of a witness, are recent fabrication and narrative: Ellard, at paras. 32-33; and Dinardo, at para. 37.

[98] Where one party has made an allegation of recent fabrication in connection with a witness called by the opposite party, the opposite party can rebut the allegation by introducing other statements the witness made before the alleged fabrication arose, that are consistent with the witness’ trial testimony: Ellard, at para. 32. A “fabrication” can arise because outside sources have influenced the witness: Ellard, at para. 33; R. v. B. (A.J.), 1995 CanLII 94 (SCC), [1995] 2 S.C.R. 413, at para. 1. To be “recent”, a fabrication need only have been made after the event about which the witness testifies. The rebutting statements must have been made before the alleged fabrication arose: Ellard at paras. 32-33; and Stirling, at para. 5. The rebutting statements are not evidence of the truth of their contents.

[99] Sometimes, prior consistent statements may be admissible as part of the narrative, to help the trier of fact understand how a complainant’s story was first disclosed: Dinardo, at para. 37; R. v. C. (G.), 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245, at paras. 20-22. The narrative exception does not permit use of the prior consistent statements to confirm the truthfulness of the sworn allegation, but does permit its use to show the fact and timing of a complaint, which may help the trier of fact to assess truthfulness or credibility: Dinardo, at para. 37.

[100] Both the recent fabrication and narrative exceptions to the rule prohibiting the introduction of prior consistent statements permit introduction of the prior statements for a limited purpose. As with other items of evidence received for a limited purpose, the trial judge should instruct the jury about the limited value of this evidence. The instructions should make it plain that the jurors are not to consider the contents of the statements as proof that a crime has been committed: R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.) at p. 476.

The Principles Applied

[101] This ground of appeal is well-founded. Both M.G. and M.P. gave evidence, some of which was inadmissible. The trial judge did not adequately instruct the jury to ignore the inadmissible parts of this evidence and to confine their use of the admissible parts within the limits permitted by law.

[102] M.G.’s report of her discussion with N.F. about N.F.’s observation of J.T.’s exposed penis and his direction to N.F. to touch it, offended the exclusionary rules relating to hearsay and extrinsic misconduct. Offered as proof of the truth of the allegations, the evidence was inadmissible hearsay. Tendered to prove that N.F. made the statement M.G. attributed to her, the evidence was irrelevant since it was not part of the allegations contained in the indictment and N.F. did not recount any such incident. And in any event, the evidence revealed extrinsic misconduct of limited probative value and substantial prejudicial effect.

[103] M.G. also testified that she told N.F. to tell her mother about J.T.’s conduct. N.F. confirmed that she had already told her mother but that her mother didn’t believe her. M.G.’s repetition of what N.F. told her about her mother’s response was double hearsay.

[104] M.G. testified that after she had seen J.T. touch M.R.F., first on her face then on her breast, she asked whether J.T. had touched her often. M.G.’s repetition of M.R.F.’s response that J.T. insisted that the complainants not close the door to the bathroom (when they showered) or bedroom (when they slept), so that he could see them naked was inadmissible hearsay. M.G. also repeated M.R.F.’s report of her mother’s disbelief when told of J.T.’s conduct. Out of the mouth of M.G., this evidence was double hearsay.

[105] M.G. also gave evidence that her husband would not visit M.C., J.T. and the complainants because he disapproved of J.T. being in the house. M.G.’s husband’s views about J.T. were irrelevant to the issues the jury had to decide. The fact that he and M.G. did not visit was relevant to explain the delay in reporting the appellant’s conduct, in that their presence may have encouraged the complainants to report their abuse earlier.

[106] M.P., the CCAS worker who investigated the 1994 complaints, gave evidence about the history of the 1994 proceedings. Among other things, M.P. testified that during child protection proceedings, a judge had made a finding that the complainants were at risk of sexual abuse and made an interim supervision order. This evidence, which was inadmissible hearsay, tended to support the Crown’s position that the 1994 allegations were well-founded and the recantation false.

[107] M.C., the complainants’ mother, did not testify at trial. M.P. gave evidence about M.C.’s stated disbelief of the complainant’s allegations, of statements she attributed to the complainants and of remarks made by M.C. to M.G. who repeated them to M.P. As proof of the truth of the assertions contained in these reports, the evidence was inadmissible hearsay, in some cases, double hearsay.

[108] The record discloses no hearsay analysis or any attempt to consider whether any parts of the evidence that may have been otherwise relevant, material and admissible should be excluded because their prejudicial effect outweighed their probative value.

[109] Early in M.G.’s testimony, the trial judge told the jury to ignore her evidence about conversations she had with the complainants “and that per se is not admissible”. The charge contained no repetition of this prohibition and no equivalent instruction was given about the remarks attributed to M.C. Nothing similar was said about the evidence of M.P. Nothing to warn jurors off use of the inadmissible evidence, and nothing to confine their application of the admissible parts of the evidence to legitimate purposes.

[110] An assessment of the consequences of these errors on the legitimacy of the verdicts rendered at trial should await the conclusion on the remaining grounds of appeal.

Ground #3: The Admissibility and Use of Prior Consistent Statements

[111] This ground of appeal, like its predecessors, alleges error in the reception of inadmissible evidence and inadequate instruction on the use of any prior statements of the complainants that were properly admitted.

[112] In part, this ground of appeal involves consideration of evidence that has been the subject of discussion in connection with the first two grounds of appeal.

The Instructions of the Trial Judge

[113] The trial judge provided counsel with a draft of her proposed final instructions. Despite her invitation for comment and submissions, neither counsel at trial sought any instructions limiting the use of the evidence that is subject to this claim of error. The charge contains no limiting instructions on this subject.

The Arguments on Appeal

[114] From the beginning, Mr. Rosen acknowledges that trial counsel took no real objection to the reception of this evidence and sought no specific instructions to limit its use by jurors. Despite these failures, Mr. Rosen submits, prior consistent statements of a witness are generally inadmissible because they lack probative value. No exception applies here. These statements could not shelter under the recent fabrication exception because none were made prior to the motive to fabricate, which originated in 1994 and persisted throughout.

[115] Mr. Rosen says that these statements were not admissible under the narrative exception, but even if they were, the trial judge failed to give jurors appropriate instructions confining their use to what the law permits and ensuring that jurors did not use them as proof of the truth of what was said.

[116] Ms. Bartlett-Hughes concedes that, as a general rule, prior consistent statements are not admissible in criminal trials unless they fall within a recognized exception to the exclusionary rule. Here, she submits, the prior consistent statements were properly admitted as narrative, to rebut the allegations that the 2001 claims had been recently fabricated, and to respond to the claim of collusion.

[117] Ms. Bartlett-Hughes submits that the usual limiting instructions were not required here. Trial counsel for the appellant did not seek limiting instructions, which are not always required anyway, especially where, as here, an accused relies upon the statements to support his position at trial. And besides, the jury would have understood, from the charge as a whole, that they were not to use the statements as evidence of the truth of what the complainants said.

The Governing Principles

[118] Among the exceptions to the general rule that limiting instructions are necessary when prior consistent statements have been received in evidence are cases in which the defence relies on the prior statement, or where the prior statement was not offered to prove the underlying facts, or where the concern over self-corroboration and bolstering the witness’ reliability is not present: Ellard, at para. 43; Demetrius, at para. 22; S. (P.), at paras. 62-63.

[119] The appellant also complains that M.P. gave inadmissible expert opinion evidence. A brief reference to some basic principles governing the admissibility of expert opinion evidence is sufficient to determine the validity of this complaint.

[120] The admissibility of expert opinion evidence depends upon the application of four criteria:

i. relevance;

ii. necessity;

iii. absence of any exclusionary rule; and

iv. a properly qualified expert.

See, R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 20.

[121] Necessity is not judged by a standard that is too stringent. The opinion proffered must be necessary in that it provides for jurors information that likely falls outside their experience and knowledge. If jurors are unassisted by persons with special knowledge of a subject, they are unlikely to form a correct judgment about it: Mohan, at pp. 23-24.

[122] The opinion proffered by an expert must not fall foul of any exclusionary rule of evidence separate and apart from the opinion rule itself. An opinion that lugs in double hearsay or evidence of bad character is rejected for contravention of the hearsay or character rules even if it meets the remaining criteria for reception as expert evidence: Mohan at p. 25.

[123] To give expert opinion evidence about a subject, a witness must have acquired special or peculiar knowledge through study or experience about the subject on which the witness proposes to testify: Mohan, at p. 25. The expert must also stay within and not stray beyond his or her area of expertise: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 244. We impose upon opposing counsel an obligation to object when an expert ventures beyond the proper limits of his or her expertise: Marquard, at p. 244.

The Principles Applied

[124] Putting to one side, inadmissible portions of M.P.’s evidence discussed earlier, I would not give effect to the majority of the appellant’s complaints grounded on wrongful admission of and inadequate instruction on evidence of prior consistent statements of the complainants.

[125] In the rear view mirror of appellate review, what at first appears as substance may turn out to be shadow on closer examination. Our job is appellate review, not academic scrutiny. We determine whether the proceedings under review were fair, not whether they were perfect. What might be cause for reversal in one case, may pass muster in another.

[126] In this case, the defence position at trial was that the allegations of serial sexual offences against the complainants over many years were complete fabrications. Pure fiction. The complainants disliked the appellant from the beginning. He made and enforced rules. He didn’t work. He was a freeloader. All take and no give.

[127] In the circumstances of this case, the prior consistent statements of the complainants were admissible under the narrative exception to the exclusionary rule. They provided background to the story, chronological cohesion, and they eliminated gaps that could have diverted jurors’ attention from the central issue: F. (J.E.), at p. 474.

[128] The narrative exception cannot sustain the admissibility of M.P.’s evidence that her investigation validated the earlier claims of abuse and that a judge made a supportive finding. Further, M.P.’s prediction that the complainants would recant, and her view that the recantation was false, well exceeded the reach of the exception, not to mention the opinion rule.

[129] The trial judge did not include a general instruction about the evidentiary value of prior consistent statements in her charge to the jury. In a brief recharge, in response to an objection by the appellant’s trial counsel, the trial judge instructed the jury that all the evidence about the police and CAS involvement in 1994 was “relevant to the issue of assessment of credibility and provides some context with respect to the recantation”. These instructions were inadequate to confine jury use of admissible narrative and to ensure that the inadmissible parts of M.P.’s evidence played no part in the jury’s deliberation or decision.

Ground #4: The Evidence of Post-Offence Conduct

[130] This ground of appeal focuses on three discrete incidents about which evidence was given at trial and the trial judge’s treatment of them in her charge.

The Background

[131] The complainants alleged, among other things, that the appellant took them to the apartment of his female friend, C.O, to have sex with them. During the appellant’s preliminary inquiry in 2005, D/C Stuart, the investigating officer, went to C.O.’s apartment to confirm her place of residence for service of a subpoena to compel her attendance as a Crown witness at the preliminary inquiry. The appellant answered the door. The officer had to put her foot in the door to prevent the appellant from closing the door in her face.

[132] The second incident occurred during the CCAS investigation in 1994. M.P., the CAS worker assigned to the investigation, explained that she tried to meet with the appellant about the allegations. The appellant refused to do so.

[133] The third incident was described by M.F. in a videotape admitted under s. 715.1 of the Criminal Code at trial. In that statement, M.F. said that, after the appellant’s relationship with M.C. ended, his brother came to the complainants’ home to pick up J.T.’s computer. J.T. remained in the car outside. J.T.’s brother gave M.F. a computer disk and told her that there was a message on the disk. M.F.’s computer could not read the disk. The appellant’s brother called M.F. over to speak to the appellant on the brother’s cell phone. M.F. refused. M.F. spoke to J.T.’s father by cell phone. The father told her to “protect” J.T.

The Use of the Evidence at Trial

[134] Counsel for the appellant at trial did not object to the reception of the evidence about the incident at the door to C.O’s apartment or to the admissibility of the videotape of M.F. made under the auspices of s. 715.1 of the Criminal Code. Counsel did object to the evidence from M.P. about the appellant’s refusal to meet with her in 1994. The trial judge told the jury that the prosecutor’s question that elicited the evidence was not appropriate and the evidence was irrelevant.

[135] In her final instructions to the jury, the trial judge summarized the evidence of the appellant’s conduct at the door to C.O.’s apartment and left the evidence about the computer incident to the jury as evidence of post-offence conduct. Neither instruction attracted an objection from the appellant’s trial counsel.

The Arguments on Appeal

[136] For the appellant, Mr. Rosen says that the evidence about the incident at the apartment door and about the appellant’s refusal to meet with the CCAS worker in 1994 was irrelevant and inadmissible. The evidence lacked probative value, thus was irrelevant. Further, the reception of the evidence infringed the appellant’s right to silence, thus exacted an evidentiary price for the exercise of a constitutional right. The trial judge provided no limiting instruction about the door incident and her instruction about the appellant’s refusal to meet with the CAS worker was inadequate to prevent impermissible reasoning.

[137] Mr. Rosen contends that the computer return incident described in M.F.’s videotape admitted under s. 715.1 was not properly admissible under the statutory provision. It did not fairly fall within the phrase “the acts complained of” in the section. Further, this evidence, freighted with speculation, was inadmissible as evidence of post-offence conduct and should never have been left to the jury on that basis.

[138] For the respondent, Ms. Bartlett-Hughes rejects the characterization of the apartment door incident as evidence that implicates the appellant’s right to silence. To the contrary, she submits, this evidence demonstrates an attempt by the appellant to obstruct service of a subpoena on a witness that he knew had material evidence to give. The brief factual reference to the evidence in the charge without specific instructions about its use caused the appellant no prejudice, a consequence best illustrated by experienced trial counsel’s failure to object.

[139] Ms. Bartlett-Hughes acknowledges that the trial Crown’s question seeking a response that the appellant refused to meet with the CCAS worker, M.P. in 1994 was improper. But, she says no harm, no foul. The witness did not reply. The judge immediately told the jury that the question was inappropriate, and the response sought irrelevant and not part of their consideration.

[140] In connection with the videotaped statement of M.F. admitted under s. 715.1 of the Criminal Code, Ms. Bartlett-Hughes submits that trial counsel had an opportunity to challenge the admissibility of this evidence, or seek to have it edited to exclude reference to the computer recovery incident, but did neither. The trial judge’s factual recital of the evidence in her charge pointed out that the reference “protect [J.T.]” was hearsay and not properly before the jury. The appellant testified that he remained outside when his brother attended to recover the computer. Thus, it was open to the jury to conclude that the appellant was fully complicit in this incident that the jury could further infer was for an improper purpose. The instructions given on post-offence conduct ensured that this evidence was not improperly used.

The Governing Principles

[141] The issues raised require brief reference to the principles that govern evidence of post-offence conduct, the right to silence and the admissibility of videotaped evidence under s. 715.1 of the Criminal Code.

[142] In the law of evidence, the descriptive “post-offence conduct” is a term of art. It is not a neutral term that embraces any and all behaviour that occurs after a crime has been committed, only behaviour that is probative of guilt: R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at para. 37. Evidence of post-offence conduct is circumstantial evidence which, like other circumstantial evidence, will be relevant and admissible according to whether it has some tendency, as a matter of logic, common sense and human experience, to help resolve the issues in the case: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 140; and R. v. Cornelius, 2011 ONCA 551, 283 O.A.C. 66, at para. 19.

[143] Evidence of anything done by an accused after the commission of an offence is not subject to a special warning. As a general rule, it is for the jury to decide whether, on the basis of the evidence as a whole, evidence of an accused’s post-offence conduct is related to the commission of the offence charged rather than to something else. It is also for the jury to decide how much, if any, weight it should assign to this evidence in its final decision: White, at para. 137; and Cornelius, at para. 19. Evidence of post-offence conduct could include evidence of an accused’s attempt to influence a witness or to obstruct police access to witnesses.

[144] It is trite that everyone has the right to remain silent when questioned by police: Turcotte, at para. 41. It is of no moment to the right to remain silent whether the person asked questions is within the state’s power and control or not: Turcotte, at para. 51. The right to silence would be an illusory right, a mere shibboleth, if the decision not to speak to the police could be invoked by the Crown as evidence of guilt: Turcotte, at paras. 44-46. In the absence of a statutory obligation to do so, refusal to assist child protection authorities should equally not constitute an item of evidence in the prosecution’s case.

[145] Where evidence of an accused’s silence is admitted, a trial judge should instruct the jury about

i. the proper purpose for which the evidence was admitted[^2];

ii. the impermissible inferences that must not be drawn from the evidence of silence;

iii. the limited probative value of silence; and

iv. the dangers of relying on evidence of silence.

See, Turcotte, at para. 58.

[146] Section 715.1 of the Criminal Code permits the reception of a videotaped statement of a complainant or witness under 18 at the time an offence is alleged to have been committed, provided certain statutory requirements have been satisfied. The provision does not authorize the introduction of evidence that offends other admissibility rules. Editing may be required to ensure compliance with these rules: R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at pp. 429 and 461; R. v. F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at paras. 51-55; and R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 14 O.R. (3d) 225 (C.A.), at p. 249.

[147] Section 715.1 permits introduction of evidence to the extent that the witness or complainant “describes the acts complained of”. References to other conduct not encompassed by the indictment or to conversations that form no part of “the acts complained of” are not rendered admissible by s. 715.1: Toten, at p. 248; and F. (C.C.), at para. 54.

The Principles Applied

[148] This ground of appeal contests the admissibility of evidence of the appellant’s conduct on three discrete occasions, years apart, and the adequacy of the trial judge’s instructions to the jury about the use of this evidence in their deliberations. Only one has merit.

[149] First, D/C Stuart gave evidence that the appellant’s reaction when the officer arrived at C.O.’s door to confirm her address for service of the subpoena to compel her appearance at the appellant’s preliminary inquiry.

[150] Evidence that an accused attempted to interfere with service of a subpoena on a person whom she or he knew had material evidence to give in the accused’s prosecution may be relevant and admissible as part of the prosecution’s case. As a matter of logic, common sense and human experience, an attempt by an accused to obstruct justice in the collection of prosecution evidence after an alleged offence may help a jury to resolve the issues in a case. It remains for the jury to decide, on the basis of the evidence as a whole, whether this post-offence conduct was related to an offence charged, or to something else, and if so, how much weight, if any, to assign to it in reaching their ultimate conclusion: White, at para. 137; and Cornelius, at para. 19.

[151] As a general rule, circumstantial evidence of what the appellant did after the commission of the alleged offence requires no special warning to ensure proper jury use of the evidence: White, at para. 137; and Cornelius, at para. 19. The jurors received no specific instruction about this evidence, either when it was admitted or later in the charge. Special instructions may be required in instances where jurors may attach more weight to the evidence than warranted: White, at para. 137; and Cornelius, at para. 19. But that is not the case here. The jurors could be trusted to use their own experience and common sense to determine what weight to assign to it when considered with the rest of the evidence.

[152] The appellant mischaracterizes this evidence as an exercise of his right to remain silent. The conduct here had nothing to do with the appellant’s refusal to respond to police questioning or other investigative procedures.

[153] Second, evidence that the appellant refused to speak to a CCAS worker, M.P., in connection with the 1994 allegations and investigation was not fully developed at trial because the trial judge intervened after the question designed to elicit the evidence had been asked.

[154] In the absence of some statutory obligation, of which none is cited here, the appellant was not required to answer any questions of M.P., the CCAS worker assigned to investigate the allegations. To require him to do so brushes uncomfortably close to an infringement of the appellant’s right to silence: Turcotte, at para. 51. This is not a case in which the appellant raised any issue that rendered his silence after inquiry relevant: Turcotte, at para. 49. No one suggested that evidence of this refusal, which occurred in 1994, was admissible as narrative: Turcotte, at para. 58.

[155] When M.P. was asked about what her next step was in her investigation, she began “I also made efforts to try and meet with Mr. [T.] but he refused. He had contacted …”. Defence counsel objected. The trial judge excluded the jury and the witness. After a brief recess, the trial judge said:

The issue was about whether Mr. [T.] gave a statement. It’s irrelevant and not part of your consideration.

[156] The trial judge’s instruction lacked the detail required under Turcotte, in particular because what the judge said did not describe the prohibited inferences from silence. That said, defence counsel sought no further or more specific instruction. I would not give effect to this complaint.

[157] The final complaint about evidence of the appellant’s conduct after the alleged offences has to do with the recovery of his computer from the complainants’ home after the relationship with M.C. ended. The evidence was recorded on the videotape of M.F. admitted under s. 715.1 of the Criminal Code.

[158] The trial judge did not conduct a voir dire to determine the admissibility of the videotape under s. 715.1. Neither counsel requested a voir dire. Defence counsel at trial did not ask the trial judge to edit the videotape to delete what appellate counsel says is inadmissible.

[159] Section 715.1 of the Criminal Code does not permit the introduction of everything contained on the videotape into evidence. The provision permits introduction of the complainant’s description of “the acts complained of”: Toten, at p. 248. The computer incident to which the complainant referred on the videotape was not any of “the acts complained of”. Rather, it occurred after the appellant had left the complainants’ home. The description of the incident was offered as evidence of post-offence conduct, essentially a thinly-veiled attempt to dissuade M.F. from reporting abuse. The adoption of the videotape that s. 715.1(1) requires does not expand its contents or the admissibility of its contents beyond an account of “the acts complained of”.

[160] The trial judge was wrong in admitting the videotape under s. 715.1 without editing the computer retrieval references that the statute does not permit to be included. The trial judge erred further in failing to instruct the jury about the inadmissibility of this evidence.

THE IMPACT OF THE ERRORS ON THE VERDICT

[161] Errors in the admission of evidence and errors or omissions in jury instructions do not always require a new trial. Some are harmless, others serious. Both may be forgiven on appellate review. Harmless errors have no impact on the verdict rendered at trial. Serious errors usually require a new trial. But, sometimes, serious errors happen in a case in which the evidence against an accused is so overwhelming that the errors caused the accused no substantial wrong or miscarriage of justice, thus the trial verdict will stand: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-36; R. v. Illes, 2008 SCC 57 2001 SCC 86, [2008] 3 S.C.R. 134, at para. 21; and R. v. Khan, 2001 SCC 86 [2001] 3 S.C.R. 823, at paras. 29-31.

[162] To determine the impact of the errors in this case, we must be mindful of the circumstances in which those errors and omissions occurred.

The Positions of the Parties at Trial

[163] In this case the jury saw and heard five principals give irreconcilable accounts of a relationship that lurched along for seven years. Four recounted serial sexual abuse. One said nothing of the sort ever happened. Other witnesses testified, but none had first-hand evidence to give.

[164] The Crown’s proof of the essential elements of any offence charged in the indictment depended upon the jury’s acceptance of each complainant’s evidence on that count. The controversy joined was whether the offences charged ever occurred.

[165] On one side of the controversy, the complainants, four sisters, gave evidence about their serial sexual abuse by the appellant at different times and places and in different circumstances.

[166] On the other side of the controversy, the appellant denied that he sexually interfered with any of the complainants at any time during his common law relationship with their mother.

[167] To unmask the obvious, the credibility of the protagonists and the reliability of their evidence occupied centre stage in this trial. Any evidence from witnesses other than the principals, that enhanced or appeared to support the credibility of the complainants and the reliability of their accounts, on the one hand, or that diminished those of the appellant, on the other, was of crucial importance to the resolution of the core issue the jury had to decide. Thus, it fell to the trial judge to ensure that only admissible evidence entered before the jury and that evidence of limited admissibility that was received was confined to its permissible use by timely and adequate judicial instructions.

The Errors and the Verdict

[168] Evidence admitted by the trial judge, largely without objection by the appellant’s counsel at trial, included evidence that was irrelevant and evidence of extrinsic misconduct, hearsay and double hearsay, opinion and prior consistent statements that fell foul of the exclusionary effect of the applicable admissibility rules. Curative instructions were lacking.

[169] Further, although the trial judge did tell the jury that they were to confine their decision on each count to evidence that related to that count and not to let the verdict on one count dictate their conclusion on another, the trial judge never told the jury, as she was required to do, that they must not rely on the evidence on other counts or of other uncharged or disreputable conduct as proof that the appellant was the sort of person who would, or was likely to, commit the offences charged: Rarru, at pp. 165-166; and M. (B.), at paras. 41-42.

[170] The errors here were not harmless. Inadmissible evidence was received. Curative instructions were not given to disabuse jurors’ minds of evidence that they could not use in reaching their verdict. Further, judicial instructions did not confine evidence of limited admissibility to its permitted use and enjoin what was prohibited.

[171] The serious errors committed here can be saved harmless only if the evidence properly admitted was so overwhelming that no substantial wrong or miscarriage of justice has occurred. The evidence in this case permits of no such conclusion.

CONCLUSION

[172] In the result, I would allow the appeal from conviction, set aside the jury’s verdicts and order a new trial on all counts. In the circumstances, I do not reach the appeal from sentence.

“David Watt J.A.”

“I agree D. O’Connor A.C.J.O.”

Released: March 21, 2012 “DOC”

• Karakatsanis J.A. did not participate in this judgment.

[^1]: For example, “just before we broke briefly I had asked you to take your mind back to specifically 1994 and any events that you happened to observe that you would like to share with us.”

[^2]: Evidence of silence may be admissible in some cases, as for example, where an accused raises an issue that renders his or her silence relevant: Turcotte, at paras. 48-50.