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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

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 s. 276.3 of the Criminal Code shall continue. This section of the Criminal Code provides:

276.3(1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 276.1;

(b) any evidence taken, the information given and the representations made at an application under section 276.1 or at a hearing under section 276.2;

(c) the decision of a judge or justice under subsection 276.1(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under section 276.2, unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction; 1992, c. 38, s. 2; 2005, c. 32, s. 13.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.T., 2012 ONCA 511

DATE: 20120725

DOCKET: C50705

Feldman and Watt JJ.A. and Dambrot J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

M. T.

Appellant

David E. Harris, for the appellant

Susan Magotiaux, for the respondent

Heard: January 25, 2012

On appeal from the convictions entered by Justice A. Stong of the Superior Court of Justice, sitting with a jury, on March 10, 2009.

Watt J.A.:

[1] After watching two television programs that encouraged victims of sexual abuse to report their experiences to the authorities, E.G. accused her uncle, M.T., of sexually abusing her. E.G. said that the abuse occurred while M.T. babysat her after school while her mother worked, and on weekends when she stayed overnight at M.T.’s house visiting with M.T., her aunt, L.T., and their two children.

[2] M.T. denied his niece’s allegations.

[3] A jury deliberated for parts of two days before finding M.T. guilty of sexual assault, sexual interference and invitation to sexual touching.

[4] M.T. seeks a new trial. He says that the trial judge wrongly excluded evidence and failed to provide appropriate limiting instructions for certain evidence he admitted. He also contends that the trial judge mishandled a question from the jury by failing to provide a proper legal response and effectively foreclosing further questions.

[5] These reasons record my rejection of the appellant’s claims of error and explain why I would dismiss the appeal.

THE BACKGROUND FACTS

[6] The grounds of appeal advanced do not require any catalogue of the specifics of E.G.’s allegations. A brief overview will suffice. Further detail can await the examination of the individual grounds of appeal.

The Setting

[7] E.G. was 12 when she testified at trial. She gave evidence about conduct alleged to have taken place at M.T.’s home several years earlier.

[8] E.G. testified that when she was eight years old, she would go to M.T.’s house after school and stay there until her mother picked her up after work. E.G. was not usually alone with M.T. Two children, about the same age as E.G., were usually there after school. Sometimes, E.G.’s brother, V., was there as well. E.G.’s aunt, L.T., worked outside the home and was usually at work after school. However, she was at home from time to time, including on weekends when E.G. would sleep over.

[9] E.G. did not allege that M.T. ever penetrated her. She did say that he put his penis on her vaginal area and against her back and buttocks and rubbed it back and forth against her. Sometimes, on the weekends, the appellant and E.G. would be alone in the living room. On these occasions, the appellant would show her “sex shows”, get her to remove her clothes, and tell her to copy what the people in the shows were doing as he touched his penis and simulated acts of intercourse. E.G. also gave evidence of a single act of fellatio, other incidents of masturbation and squeezing of her breast area.

[10] Trial counsel for the appellant acknowledged that if the jury believed that the conduct described by the complainant occurred, the acts amounted to the offences charged.

The Complaint

[11] When E.G. was ten, she saw two television shows that discussed sexual abuse of children and the need for the victims to report the abuse to the authorities. The programs caused her to become quite emotional, and she decided that she should disclose the abuse she had suffered. En route to hospital to be examined for a brain tumour that had been removed earlier, E.G. reported the abuse to her mother.

[12] E.G.’s mother notified the police about the allegations. An investigation began. Videotaped statements from E.G. and the appellant formed part of the Crown’s case at trial.

The Defence Position

[13] The appellant, his wife, L.T., and son, J.T., testified at trial. The appellant denied that any of the conduct E.G. alleged ever occurred. He denied being alone with her at any time, despite substantial periods of unemployment during the time she said the abuse had occurred. He admitted that he had possessed and had access to pornography, but denied ever showing pornographic videos or images to E.G.

[14] The evidence of the appellant’s wife and his son was adduced to confirm his claim that he lacked the opportunity to commit the offences. According to L.T. and J.T., the appellant was never alone with E.G., not on weekend mornings, or at any other time. Nor did he come into the bed where she slept with the couple’s two children.

The Charge to the Jury

[15] Prior to charging the jury, the trial judge provided counsel with a copy of his proposed charge and invited their comments on it. Trial counsel for the appellant acknowledged that if the jury believed E.G.’s allegations, the appellant was guilty of the offences charged. Counsel asked, and the trial judge agreed, to characterize the issues for the jury to resolve as:

i. whether the offences occurred as alleged by E.G.; and

ii. whether the appellant committed them.

[16] The trial judge provided the jurors with a written copy of his final instructions for their use during their deliberations.

the grounds of appeal

[17] All but one of the several grounds of appeal allege errors in the trial judge’s instructions to the jury. The appellant says that the trial judge erred:

i. in failing to permit cross-examination of E.G. under s. 276 of the Criminal Code about allegations of similar sexual abuse by her biological father made at the same time she claimed abuse by the appellant;

ii. in failing to instruct the jury that they could not use the fact or content of E.G.’s complaint as evidence of the truth of its contents;

iii. in failing to instruct the jury about the use they could make of evidence of extrinsic misconduct by the appellant;

iv. in instructing the jury that they could find that the evidence of the appellant’s son, J.T., was “scripted”; and

v. in failing to fully answer a question from the jury about the standard of proof and discouraging jurors from asking further questions about the same or other subjects.

Ground #1: Exclusion of Evidence of Complainant’s Other Sexual Activity

[18] Some further detail is essential to an understanding of this ground of appeal and the disposition I propose of it.

The Application

[19] At trial, counsel for the appellant (who is not counsel on the appeal) applied under s. 276 of the Criminal Code to adduce evidence, through cross-examination of the complainant, of non-consensual sexual activity between E.G. and her biological father within the time period described in each count of the indictment.

[20] E.G. reported sexual abuse by her biological father at the same time she complained about the appellant’s conduct. She disclosed these incidents during a videotaped police interview introduced at trial under s. 715.1 of the Criminal Code and testified about them at the preliminary inquiry.

[21] At trial, the appellant contended that the evidence of contemporaneous non-consensual sexual activity with her biological father was relevant to two issues at trial:

i. proof of the actus reus of the offences charged; and

ii. the identity of the perpetrator of the acts the complainant alleged the appellant committed.

The Evidentiary Background

[22] In a video-taped interview on January 18, 2007, which was adopted at trial and admitted under s. 715.1 of the Criminal Code, E.G. described how her biological father, who lived outside Canada, visited her home from time to time for a few days or a couple of weeks. While naked with E.G. in the bathtub, E.G’s father licked her vagina. He also attempted, but failed, to have sexual intercourse with her, instead rubbing his penis against her vaginal area and simulating acts of intercourse. This conduct began when E.G. was five and continued until she was seven when her father ceased to have any contact with her. He told her not to tell anyone about this activity.

[23] E.G. maintained that the unwanted sexual activity with her biological father had stopped before M.T. began to abuse her. She was interviewed by police about of physical abuse by her biological father in 2002, when her mother made allegations of physical abuse against him. However, E.G. made no complaint of any sexual impropriety at that time.

The Reasons of the Trial Judge

[24] The trial judge refused to permit the proposed cross-examination. He described the two sets of allegations as “strikingly dissimilar” to one another, having occurred during different periods of time and in different circumstances. He held that to succeed, the applicant had to establish that the proposed evidence was capable of supporting an allegation of fabrication. The evidence could not do so. The trial judge characterized the issue to which the proposed evidence was directed as collateral. He also considered that admitting the evidence would discourage reporting of sexual abuse and, thus, be at odds with the underlying purpose of the legislation.

The Arguments on Appeal

[25] For the appellant, Mr. Harris says that the trial judge failed to appreciate that the importance of the proposed evidence was that it showed the circumstances and nature of the initial complaint and, therefore, provided context for the jury’s assessment of the validity of E.G.’s allegations against the appellant. The trial judge’s finding that the two incidents were “strikingly dissimilar” was at once unreasonable and legally wrong.

[26] Mr. Harris submits that the trial judge applied a more demanding standard than the statute requires for the admission of this evidence. The evidence need not be capable of supporting a foundation for fabrication to gain entry. Probative value was sufficient in light of the minimal prejudice to the complainant that the introduction of evidence of the timing and nature of the allegations against her father would engender.

[27] For the respondent, Ms. Magotiaux contends that the proposed evidence was irrelevant to the issues that the jury was required to decide. Reduced to its essentials, she says, the appellant’s argument is that E.G. was less worthy of belief because she accused two men of having abused her, not just one. Relevance to credibility at large is not a basis upon which evidence of prior non-consensual sexual activity can be admitted.

[28] Ms. Magotiaux submits that the appellant’s assertion of relevance must be assessed in context. The appellant denied any sexual contact with E.G. He said nothing happened. The appellant did not suggest at trial that somebody else committed the offences, or that E.G. was confused or displayed a pattern of false allegations. Evidence of prior non-consensual sexual activity with another, and a complaint about it, is not relevant to support a denial of sexual activity.

The Governing Principles

[29] Section 276 of the Criminal Code creates a statutory rule of admissibility. Enacted in negative terms, the section, like other admissibility rules, is exclusionary; it precludes the admission of certain evidence. The exclusionary effect of the rule only becomes engaged when three requirements have been met. For discussion purposes, these requirements, which are cumulative, may be characterized as:

i. offence charged;

ii. subject-matter; and

iii. purpose.

The exclusionary rule prohibits the person charged from introducing certain evidence (subject-matter) for a specific use (purpose) in proceedings for a listed crime (offence).

[30] The “offence” requirement is satisfied where the proceedings in which evidence is tendered relate to a listed offence. Among the listed offences are the crimes charged here: sexual assault, sexual interference, and invitation to sexual touching.

[31] The “subject-matter” requirement, which appears in both sections 276(1) and (2), is best expressed in the language of subsection (2):

Evidence … that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person.

If the subject-matter of the proposed evidence falls outside the statutory language, the exclusionary terms of the provision do not apply. On the other hand, satisfaction of the subject-matter requirement, on its own, will not necessitate exclusion; the “purpose” requirement must also be satisfied.

[32] The “purpose” requirement is crucial to the operation of this exclusionary rule, just as it is with the common law hearsay rule. To engage the exclusionary rule of s. 276, the proposed evidence must be offered to support either of two prohibited inferences grounded on the sexual nature of the activity:

i. that the complainant is more likely to have consented to the conduct charged; or

ii. that the complainant is less worthy of belief.

Where the purpose underlying the introduction of the evidence of extrinsic sexual activity is neither of those prohibited by s. 276(1), this exclusionary rule is not engaged.

[33] Section 276(2) provides an exception to the exclusionary rule. To gain entry under this exception, evidence of the complainant’s extrinsic sexual activity must:

i. be of specific instances of sexual activity;

ii. be relevant to an issue at trial; and

iii. have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

To determine whether the evidence should be admitted under this exception, the presiding judge must follow the procedure described in ss. 276.1 and 276.2 and consider the factors listed in s. 276(3).

[34] The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of the complainant. A previous allegation of assault, without more, would fall outside the section: R. v. Gervais (1990), 1990 3701 (QC CA), 58 C.C.C. (3d) 141 (Que. C.A.), at p. 154. Questions that focus on the fact, rather than the details, of an allegation of sexual assault are not prohibited by the section: R. v. M. (A.G.) (1993), 1993 17029 (QC CA), 26 C.R. (4th) 379 (Que. C.A.), at p. 393.

[35] To be receivable in a criminal trial each piece of evidence must satisfy three requirements:

• relevance

• materiality

• admissibility.

These requirements are cumulative. Evidence that comes up short on any requirement is excluded from consideration by the trier of fact.

[36] Relevance is a matter of everyday experience and common sense, not an inherent characteristic of any item of evidence. Relevance exists as the relationship between an item of evidence proposed for reception and the proposition of fact the party tendering the evidence seeks to establish by its introduction. We assess the relevance of individual items of evidence in the context of the case in which the evidence is offered and the positions of counsel. An item of evidence is relevant if it makes the fact it seeks to establish slightly more or less probable than that fact would be without that evidence, through the application of everyday experience and common sense: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d), 16, at paras. 204-205.

[37] Materiality is a legal concept. Evidence is material if it is offered to prove or disprove a fact in issue. What is in issue is a function of the allegations contained in the indictment and the applicable substantive and procedural law: Luciano, at para. 207.

[38] Admissibility is also a legal concept. Its rules, which are negative and exclusionary, are grounded in policy considerations that we regard as sufficiently important to justify the exclusion of evidence that is both relevant and material. Admissibility rules are not unforgiving. They cede ground, occasionally admitting evidence by exception: Luciano, at para. 209.

[39] Section 276 is an admissibility rule. Like other admissibility rules, it excludes evidence that meets the foundational requirements of relevance and materiality. Its application is superfluous where evidence that would otherwise be subject to its exclusionary effect is irrelevant or immaterial.

[40] The admissibility rule in s. 276(1) does not exclude all evidence of extrinsic sexual activity of a complainant. What is prohibited is the use of evidence of extrinsic sexual activity to support either or both of the specific, illegitimate inferences described in the section: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 32.

[41] Evidence of extrinsic sexual activity of the complainant is rarely relevant to support a denial that the sexual activity charged took place: Darrach, at para. 58. The fact that others may have sexually assaulted a complainant is irrelevant to charges of sexual assault against another and to the defences that other person may raise: R. v. B. (A.R.) (1998), 1998 14603 (ON CA), 41 O.R. (3d) 361 (C.A.), at p. 365, aff’d 2000 SCC 30, [2000] 1 S.C.R. 781.

[42] Section 276(1) excludes evidence that the complainant “engaged in sexual activity” with another person at another time and place if it is tendered for either purpose proscribed by the subsection. The exclusionary rule in s. 276(2) rejects all evidence of other sexual activity unless the evidence satisfies each of the requirements of the inclusionary exception.

[43] The exceptional admission of evidence of other sexual activity under s. 276(2) requires satisfaction of the three conditions precedent listed in the subsection. One of those requirements, s. 276(2)(c), involves a balancing of probative value and prejudicial effect. But the balance is calibrated differently than we see in the general exclusionary discretion or the more circumscribed discretion to exclude otherwise admissible defence evidence. The addition of the terms “significant”, as descriptive of the probative value, and “substantially”, as the extent to which significant probative value must predominate over “prejudice to the proper administration of justice”, appears to require a more nuanced or qualitative assessment of the competing interests. These interests are incommensurables. Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof. Prejudicial effect relates to trial fairness.

The Principles Applied

[44] I would not give effect to this ground of appeal.

[45] At trial, the appellant sought to cross-examine the complainant about non-consensual sexual activity with her biological father that occurred prior to the conduct she alleged with the appellant. The complainant made it clear in her evidence at the preliminary inquiry that the sexual activity with her father ceased before the appellant began abusing her. The appellant did not intend to call the complainant’s biological father as a witness to confirm or refute her allegations against him.

[46] In his notice of application to adduce the sexual activity evidence, the appellant rested his claim on the grounds that the evidence was relevant to the “actus reus”, or to show that it was the complainant’s biological father who committed the acts she alleged. The defence advanced at trial was that the conduct alleged against the appellant never occurred, rather was the product of two television programs that encouraged the victims of sexual abuse to report their assailants to authorities.

[47] The trial judge did not exclude the proposed evidence because it invoked either of the twin myths prohibited under s. 276(1). He based the exclusion on the failure of the evidence to meet the requirements of ss. 276(2)(b) and (c), in the light of the factors listed in s. 276(3).

[48] The critical issues at trial were twofold. The first was whether the conduct alleged by the complainant occurred. And the second was, if the conduct occurred, whether the perpetrator was the appellant.

[49] As it relates to the first issue, the proposed evidence was simply not relevant to the appellant’s denial that the sexual activity took place. Evidence of non-consensual sexual activity with one person is not probative of the falsity of an allegation of non-consensual activity with another: Darrach, at para. 58; B. (A.R.), at p. 365.

[50] This evidence could only be relevant if the allegations of abuse against E.G.’s father were in fact false: R. v. Riley (1992), 1992 7448 (ON CA), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal to S.C.C. refused [1993] 2 S.C.R. x. And, as the appellant has taken pains to point out, he had no intention of demonstrating the falsity of the allegations. He simply wanted to adduce evidence relating to the nature of the allegations and their disclosure.

[51] As for the second purported basis of relevancy, the identity of the perpetrator, though both allegations were disclosed at the same time, as the trial judge noted, they were quite distinct. The abuse by E.G.’s father was alleged to have occurred prior to that perpetrated by the appellant without any overlap. The nature of the complaints was different. They took place in different locations and involved different behaviours. The allegation of non-consensual activity involving E.G.’s father could have no bearing on the identity of the perpetrator of the second set of allegations, particularly since the evidence adduced on the application, the preliminary hearing testimony and videotaped police statement of E.G., indicated that she had no contact with her father when the appellant began to abuse her.

[52] Reduced to its essence, the appellant’s argument is that a complainant who accuses two persons of sexual impropriety occurring at different times and in different circumstances is more likely to be lying about either or both than a complainant who accuses only one person. This reasoning brushes uncomfortably close to what s. 276(1)(b) proscribes and is countermanded by binding precedent: Riley, at p. 154.

[53] Even without the statutory framework of s. 276, this evidence would be inadmissible under the ordinary rules of evidence because it lacks relevance. It is a basic evidentiary principle that irrelevant evidence will be excluded. No party, including an accused, has any right to adduce irrelevant evidence: R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709, at pp. 730-731; Darrach, at para. 37.

[54] Finally, the admission of the proposed evidence was a matter that involved a fact-sensitive analysis by the trial judge under s. 276(2)(c) in light of the considerations enumerated in s. 276(3): Darrach, at para. 71. His exercise of the inclusionary discretion for which the subsection and paragraph provide is entitled to substantial deference in this court. I would not interfere with its exercise.

Ground #2: Absence of Limiting Instructions on Evidence of Prior Complaint

[55] Essential to a just determination of this claim of error is a brief reference to the evidence of prior complaint and the positions taken by counsel at trial about the need for limiting instructions on its use.

The Evidence

[56] Both the complainant and her mother testified about the initial disclosure of the allegations against the appellant.

[57] In examination-in-chief, the complainant gave a general description of her initial report and said that she had told her mother what had happened between her and the appellant. The trial Crown did not attempt to elicit the content of E.G.’s complaint to her mother.

[58] Counsel for the appellant at trial was the only lawyer who asked the complainant about the content of her first complaint. E.G. said she told her mother that the appellant had “sexually abused” her. She agreed with counsel’s suggestions that she had told her mother about licking the appellant’s penis and other incidents of abuse. E.G. couldn’t recall having provided specific details to her mother, rather had simply told her “what had happened in general”.

[59] The trial Crown cautioned G.D., the complainant’s mother, not to tell the jury what E.G. had said to her. G.D. reported the fact that E.G. had complained to her and that she, G.D., had contacted the police.

The Positions of the Parties at Trial

[60] Neither the trial Crown nor trial counsel for the appellant sought a limiting instruction about the use the jury could make of the evidence of E.G.’s first complaint. Neither counsel said anything about the evidence of prior complaint in their closing submissions to the jury. Neither complained about the failure of the trial judge to say anything to the jury about the use they could make of the evidence of E.G.’s first complaint.

The Arguments on Appeal

[61] For the appellant, Mr. Harris takes no issue with the admissibility of the evidence of E.G.’s complaint to her mother. His complaint is that the jurors should have been told, in specific terms, that they were not entitled to consider what E.G. said as evidence of what occurred. Failure to provide such an instruction risked jury misuse of the evidence in reaching its verdict and compromised its integrity.

[62] For the respondent, Ms. Magotiaux acknowledges that, as a general rule, a trial judge should instruct jurors that prior consistent statements, such as prior complaints of sexual abuse, cannot be used as evidence of the truth of their contents. But in this case, Ms. Magotiaux says, the omission was of no consequence. The trial Crown did not elicit any details of the complaint. Neither counsel, nor the trial judge made any reference to what was said in their submissions or in the jury charge. Trial counsel for the appellant did not seek a limiting instruction or object to the trial judge’s failure to include such a direction. The error was harmless in the circumstances of this case.

The Governing Principles

[63] The grievance here settles on the absence of a limiting instruction, not in the admissibility of the first complaint to the extent that its contents were disclosed in the evidence adduced at trial.

[64] The general rule that excludes prior consistent statements of a witness rests on two principal justifications. One, prior consistent statements lack probative value: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; and R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36. And, two, prior consistent statements are hearsay when adduced (or used) to establish the truth of their contents: Dinardo, at para. 36.

[65] Sometimes, prior consistent statements may be admissible as part of the narrative. Received as narrative, the prior statements are admissible for the limited purpose of helping the trier of fact to understand how a complainant’s story was first disclosed: Dinardo, at para. 37; R. v. Fair(1993), 1993 3384 (ON CA), 16 O.R. (3d) 1 (C.A.), at pp. 20-21; and R. v. Henrich(1996), 1996 2057 (ON CA), 29 O.R. (3d) 740 (C.A.), at p. 746. Where evidence of prior consistent statements is received as narrative, the trial judge should instruct the jurors that the only use they can make of the evidence is to assist them in assessing the complainant’s credibility, in certain circumstances, particularly where the complainant is a child, and they are not to use the statements as evidence of the truth of their contents: Dinardo, at para. 37; Henrich, at p. 746; and Fair, at pp. 20-21.

The Principles Applied

[66] I would not give effect to this ground of appeal. In my view, the failure of the trial judge to instruct the jurors about the prohibited use of narrative evidence was a harmless error in the circumstances of this case. My reasons are several.

[67] First, the jurors heard little of substance of the complaint. It seems reasonable to conclude that in the absence of a proper limiting instruction, the likelihood of jury misuse of narrative evidence of this kind increases with the degree of detail provided. The threadbare version provided here seems unlikely to provide much sustenance for a prohibited chain of reasoning or finding.

[68] Second, to the extent that any details of the initial complaint were elicited in evidence, it was trial counsel for the appellant who adduced the evidence.

[69] Third, neither the addresses of counsel nor the final instructions of the trial judge repeated the meagre details of the complaint.

[70] Fourth, very experienced trial counsel for the appellant did not ask for, or object to the omission of, any limiting instruction about the narrative evidence. Failure to object to what is later advanced as error is not fatal, but may suggest that counsel who conducted the trial did not consider the omission serious or prejudicial to the fair trial of his client’s case: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 43; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

Ground #3: Absence of Limiting Instruction on Evidence of Bad Character

[71] This ground of appeal also concerns a failure to provide limiting instructions to the jurors about evidence that they could consider for one purpose, but not another.

The Evidence

[72] The evidence that is the focus of this complaint emerged from the complainant’s account of events at the appellant’s house. The complainant recounted an assault by the appellant on her brother, V. As a result of the assault, V. ended up with a large goose egg on his head. Later, in her evidence, the complainant acknowledged that she did not actually see the appellant hit her brother. She added that the appellant encouraged his children to fight and to pick on V. and told V. (according to V.) to hit the complainant.

[73] The complainant’s mother testified that she removed E.G. and V. from the appellant’s home after she noticed a “goose egg” on V.’s head that V. told her the appellant had caused. The incident prompted a “blowout” between the complainant’s mother and her sister, L.T.

[74] The appellant denied ever physically disciplining his children, the complainant or V. J.T. denied that the appellant ever told him or anyone else to hit V. L.T. never saw the appellant hit any children. After the incident with the injury to V., L.T. told her sister never to bring E.G. and V. back to their home.

The Instructions of the Trial Judge

[75] Trial counsel for the appellant did not object when this evidence of extrinsic misconduct was given at trial, indeed, for the most part, the evidence came out as a result of his questioning. He sought no mid-trial limiting instruction. When provided with a copy of the trial judge’s draft instructions that contained no limiting instruction, trial counsel did not seek inclusion of such a caution, nor did he object to its admission after the charge had been delivered.

[76] Neither counsel at trial referred to this evidence in their closing addresses to the jury.

The Arguments on Appeal

[77] For the appellant, Mr. Harris does not argue that the evidence of the appellant’s extrinsic misconduct should have been excluded at trial, although he does say that it probably should have been excluded because of an impermissible imbalance between its probative value and its prejudicial effect.

[78] Mr. Harris submits that as evidence of extrinsic misconduct or bad character, this testimony warranted a limiting instruction to ensure that jurors did not follow an impermissible chain of reasoning, using evidence of bad character to circumstantially find guilt. Inherent in this evidence, which “permeated” the trial, was both reasoning and moral prejudice. Absent proper limiting instructions, jury misuse of this evidence and a miscarriage of justice was inevitable.

[79] For the respondent, Ms. Magotiaux sees it differently. She points out that the extrinsic misconduct disclosed by the evidence was markedly less serious than the allegations that underpin the counts in the indictment. Thus, she says, the likelihood of reasoning and moral prejudice arising from the introduction of this evidence is negligible.

[80] Ms. Magotiaux adds that an essential component of the limiting instruction the appellant now says was essential to a fair trial was a recital of the substance of the evidence to which the instruction applied. Such a rehearsal would scarcely have helped the appellant. The evidence, once admitted, was not repeated in the closing addresses of counsel or in the charge. The omission of the limiting instruction attracted no objection. This is a case of no harm, no foul.

The Governing Principles

[81] When evidence of extrinsic misconduct is admitted in a criminal trial, its inherent prejudicial effect may influence a jury in three main ways. First, if the jury accepts that the accused committed the other bad acts, it may assume that the accused is a bad person, thus was likely to have committed the offence charged. Second, the jury may have a tendency to punish the accused for the extrinsic misconduct by finding him or her guilty of the offences charged. Third, the jury may become confused as it concentrates on deciding whether the accused actually committed the extrinsic misconduct. Their decision about the extrinsic misconduct may be substituted for the verdict on the offence charged: R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128.

[82] Evidence of extrinsic misconduct is evidence of limited admissibility. As a general rule, evidence of limited admissibility is the subject of specific jury instructions that:

i. identify the evidence to which they apply;

ii. explain the permitted use of the evidence; and

iii. explain the prohibited use of the evidence.

R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 107.

[83] Evidence of extrinsic misconduct may infect the deliberation process with both moral and reasoning prejudice. Moral prejudice refers to the risk of an unfocused trial and a wrongful conviction grounded on an inference of guilt from general disposition or propensity: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 139. Reasoning prejudice refers to the risk of distracting the jurors from their proper focus on the offences charged when allegations of other misconduct enter the trial: Handy, at para. 144-145.

[84] Failure to give a limiting instruction that the law requires is an error of law. When an error of law occurs, it is for appellate courts to determine whether any convictions recorded at trial can be sustained despite the error of law. Convictions may be upheld providing the error did not cause a substantial wrong or miscarriage of justice: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.

[85] Errors of law may be so harmless or minor that they could not have had any impact on the verdict. For example, the error may relate to an issue that was not central to the overall determination of guilt or innocence, or the error may be beneficial to the accused: Van, at paras. 34-35. Errors of law may be serious enough to warrant a new trial or an acquittal, except that the evidence against the accused was so overwhelming that any verdict other than guilt would have been impossible to obtain: Van, at para. 34. Each case is different.

The Principles Applied

[86] This ground of appeal fails for several reasons.

[87] First, the extrinsic misconduct at issue was of brief duration. It was much less serious, and of a different kind, than the offences charged. It seems an unlikely sponsor of an inference of guilt of sexual assault of child X that an accused may have struck X’s brother on the head causing a “goose egg”. The prospect of propensity reasoning from a single isolated incident seems, at best, tenuous: R. v. Beausoleil, 2011 ONCA 471, 277 C.C.C. (3d) 50, at para. 21.

[88] Second, limiting instructions about evidence of extrinsic misconduct are not necessary in every case in which evidence of extrinsic misconduct has been introduced: Beausoleil, at para. 20; R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at para. 35. The requirement of a limiting instruction depends on a variety of circumstances including, but not limited to, the nature and extent of the evidence of extrinsic misconduct, the likelihood the limiting instruction may unnecessarily draw attention to the discreditable conduct, and the extent of the risk that the evidence may be used improperly: Beausoleil, at para. 20.

[89] Third, trial counsel for the appellant, a very experienced criminal lawyer, did not contest the admissibility of the evidence, did not seek a limiting instruction when provided with a draft copy of the judge’s final instructions in advance of their oral delivery, and did not object to the omission after the charge had been delivered. In fact, much of this evidence was elicited through his questioning. It is a reasonable inference that experienced trial counsel did not consider the omission to be serious or to constitute a significant risk of compromising the fairness of the trial.

[90] Finally, the evidence of extrinsic misconduct did not relate to the central issue in the case, namely whether the conduct alleged took place at all or was perpetrated by the appellant.

Ground #4: The “scripted” Evidence Instruction

[91] This ground of appeal relates to a passage in the trial judge’s final instructions to the jury to which trial counsel for the appellant objected upon initial receipt of the trial judge’s draft.

The Positions at Trial

[92] When trial counsel for the appellant objected to the trial judge’s use of the term “scripted” in connection with the evidence of the appellant’s son, J.T., the trial judge said that the similarity between the appellant’s evidence and his son’s testimony could support a finding that the son’s evidence was “scripted”. Trial counsel sought deletion of the term “scripted”. The trial judge said he would incorporate the term into a question that he would invite the jurors to consider in their assessment of J.T.’s evidence. Defence counsel said: “alright”.

The Charge to the Jury

[93] The trial judge summarized the testimony of J.T. as evidence that the appellant was never alone with the complainant. He pointed out some but not all the similarities between the evidence of father and son, and the contradictory evidence given by a neighbour. The trial judge told the jury that J.T.’s credibility and the reliability of his evidence was for them to assess, like the evidence of any other witness. The trial judge continued:

It is for you to determine whether [J.’s] testimony was a credible and reliable expression of his own recollection, or whether it was, for example, the scripted result of an interest in the outcome. You will decide whether you accept some, all, or none of his testimony in the same way you determine the reliability of other witnesses.

The Arguments on Appeal

[94] For the appellant, Mr. Harris acknowledges the undoubted authority of a trial judge to instruct the jury that they might find the evidence of a witness unreliable. The problem here, Mr. Harris says, resides in the phrasing of the instruction in a way that the jurors might infer that the appellant was the author of the “script” followed by his son. Mr. Harris submits that the trial record was barren of any evidentiary support for such an inference, which was gravely prejudicial to the appellant.

[95] For the respondent, Ms. Magotiaux says that the trial judge’s instruction about J.T.’s evidence was not the functional equivalent of a direction that the jury find that his evidence was “scripted”. The characterization of J.T.’s evidence as “scripted” had a sound evidentiary footing. The instruction was balanced, leaving the ultimate determination of credibility and reliability to the jury. Nothing said or unsaid directed or invited the jury to draw an adverse inference against the appellant. No prejudice occurred.

The Governing Principles

[96] Final instructions to jurors offer guidance on how to assess the evidence of witnesses and explain that jurors may believe all, some or none of the testimony of any witness. Among the factors jurors are invited to consider are the honesty and interest of the witness, and whether the witness’ account reflects personal observations or an account based on information provided by others or obtained from other sources.

[97] We distinguish between exculpatory evidence that it is disbelieved, thus rejected by the trier of fact, and exculpatory evidence that is found to be fabricated: R. v. O’Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263 (C.A.) at para. 17. Judicial instructions must not expressly or by necessary implication leave jurors with the impression that they can infer fabrication from disbelief and leverage a finding of fabrication into evidence of guilt. To do so, would be to equate disbelief of exculpatory evidence with positive proof of guilt, and to ignore the Crown’s obligation to prove an accused’s guilt beyond a reasonable doubt.

[98] Jury disbelief of exculpatory evidence does not, without more, permit, much less establish, an adverse inference of fabrication against an accused. To ground an adverse inference, there must be evidence capable of showing fabrication, apart from the evidence that contradicts the exculpatory evidence and the fact that the jury find the witness testified falsely at trial: O’Connor, at para. 23.

The Principles Applied

[99] I would not give effect to this ground of appeal.

[100] The challenged instruction related to a factor the jurors could consider in assessing J.T.’s credibility and the reliability of his evidence. The remarkable similarity between the evidence of father and son was a relevant factor for jurors to consider in assessing the weight to assign to the evidence of both. That J.T’s evidence was “scripted” was an inference that the jurors could draw.

[101] Further, the instruction did not direct the jurors to find that J.T.’s evidence was “scripted”. It did not suggest that the appellant was the “script” writer. Nor did it invite the jurors to draw an adverse inference against the appellant to supplement the case for the Crown. Despite his early complaints about the use of the term “scripted”, trial counsel did not object to the manner in which the issue was left in the jury’s hands.

Ground #5: The Alleged Error in Response to the Jury’s Question

[102] The final ground of appeal alleges legal error in the judge’s response to a question posed by the jury during the second day of deliberations. The complaint relates both to the substance of the answer and to the effect of the instruction on the subsequent deliberations. As with all jury questions, some context is essential.

The Jury’s Question

[103] During the afternoon of the second day of their deliberations, the jury sent the trial judge a note:

We are at a crossroads. We are looking for direction and explanation in applying the law with respect to,

(1) Burden of proof.

(2) Burden of proof beyond a reasonable doubt.

The Positions of the Parties at Trial

[104] Trial counsel for the Crown suggested that the trial judge simply re-read his previous instructions on the burden and standard of proof, even though jurors had a written copy of the charge.

[105] Trial counsel for the appellant took the position that the trial judge’s initial instructions required no amplification to respond to the jury’s question. Counsel proposed this response:

I think the appropriate comment is “Ladies and gentlemen of the jury, thank you for your question but we have provided you with written instructions and how to apply this law, and I refer you to that within the closing. Thank you, good bye, Godspeed on your verdict.” Not quite that fast but that’s where I’m coming from.

The Judge’s Answer

[106] The judge explained to the jury that he could not tell them how to apply the law or what decision they should make. He continued:

So when you use the word, “applying the law”, I can tell you what the law is, and I can read it to you, and that’s it, and the opinion of the lawyers is that I have given you the law, you’ve got it in writing, and now you have to pick it out of the pages and apply it to the facts that you find. The burden of proof, “Burden of proof” means responsibility, the job of proving, who carries the load, proving whose responsibility is it. “Burden”, means that, and as I indicated, the burden of proof, it always rests on the Crown to prove the case beyond a reasonable doubt, because in Canada an accused person never has to prove this innocence. So that’s what burden means, it means the responsibility, alright, in presenting the case and the case has been presented. Beyond a reasonable doubt, again, I’ve given you the definition, and on page two, the second page of the definition, when I say, “A reasonable doubt is not an imaginary or farfetched doubt, it’s not a frivolous doubt, nor is it a slight doubt, it’s not a doubt based in fear of making a decision either.” Alright, so everything that I can say about the law has been said, you have a copy of it, and the dialogue has to continue between all of you in sharing your views. And don’t forget, we carry into our deliberations our human experiences, each and every one of us, that’s what life is all about, we carry those experiences with us. So those are the experiences that make our conversations different, those are the experiences that make our communication different from one and other, but you’re called together to share that and listen to one and other. Alright, I think that’s all I can say in about applying the law, so work hard and keep at it.

[107] Neither counsel objected to the judge’s response to the jury’s question. Almost four hours after the judge answered the question, the jury returned its verdict without asking any further questions.

The Arguments on Appeal

[108] For the appellant, Mr. Harris says that the trial judge made two mistakes in his response to the jury’s question. The first error was that the trial judge failed to include a W. (D.) instruction, or its equivalent, in his response about the burden and standard of proof. The second error was that the effect of the answer was to foreclose further questions from the jury seeking clarification or elaboration of subjects included in the main charge.

[109] Mr. Harris underscores the importance of clear, correct and comprehensive responses to questions from the jury. In this case, the jury had a written version of the judge’s charge, including the W. (D.) formula. Their task required them to resolve, in a manner consistent with the onus and standard of proof, a credibility tussle between the complainant and the appellant. It was crucial that the judge’s response make it clear that the principles of W. (D.) remained in play. His failure to do so amounts to fatal error.

[110] Mr. Harris contends further that the trial judge’s response was largely dismissive of the jury’s question. Rather than leaving it open to the jury to return with further questions, or to seek greater clarification about the onus and standard of proof, the trial judge did the opposite: he told the jury he could say no more about the subject. That too, Mr. Harris says, was a fatal error.

[111] For the respondent, Ms. Magotiaux submits that, in essence, the appellant’s complaint is that the trial judge didn’t say enough about the standard of proof. He failed to include the W. (D.) formula, or a reasonable facsimile of it, in his answer. But, the written charge contained W. (D.). The answer given accorded with the position advanced by trial counsel for the appellant who took no issue with the substance of the response, in particular, the omission of W. (D.).

[112] Ms. Magotiaux contends that nothing the trial judge said, or failed to say, expressly, or by necessary implication, discouraged further jury questions about the burden or standard of proof, or anything else. That further questions were not asked in nearly four hours of further deliberations proves nothing.

The Governing Principles

[113] Several principles have a say in determining whether the trial judge’s response to the jury’s query was correct or fatally flawed.

[114] Jury questions indicate that at least some jurors are having a problem with an issue in the case. Jury questions merit a full, careful and correct response: R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-760; R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, at p. 530; R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at para. 20.

[115] Recharges on issues presented by jury questions must be correct and comprehensive no matter how exemplary the original charge may have been: S. (W.D.), at pp. 530-531. As a general rule, the correctness of the original charge cannot be summoned in forgiveness of a later error in a recharge on the very point on which the jury reports confusion and seeks clarification: S. (W.D.), at pp. 530-531. Further, the more time that has elapsed between the main charge and the jury question, the more imperative it is that the recharge contain a correct and comprehensive response: S. (W.D.), at p. 531.

[116] In some instances, for example where a written version of the original charge has not been provided to jurors and a jury question indicates a failure to recall the substance of the original charge, a repetition of the original instructions may be sufficient: Layton, at para. 23. On the other hand, where the judge has provided jurors with a written version of the charge, a juror question about a subject like the standard of proof may require something more than oral repetition of the charge already given: Layton, at para. 24.

[117] In at least some cases in which a jury question relates to the standard of proof, it may become essential to include a W. (D.) instruction in the response: W. (D.), at p. 757; R. v. M. (M.C.) (2003), 2003 23732 (ON CA), 176 C.C.C. (3d) 263 (Ont. C.A.), at para. 45. Doubtless, inclusion of the W. (D.) formula is preferable in recharges responding to questions about the standard of proof, but its omission may not always be fatal: R. v. Scott (2002), 2002 41668 (ON CA), 157 O.A.C 246.

[118] Responses to jury questions should not, in terms or by necessary implication, discourage jurors from asking further questions on the same, related or other subjects: Layton, at paras. 31-33.

The Principles Applied

[119] This ground of appeal includes two discrete but related complaints about the substance of what the trial judge said in answer to the jury’s question, and a further grievance concerning the effect of what was said on the jury’s right to submit further questions for judicial response.

[120] The first complaint faults the trial judge for failing to include in his response to the jury’s question an instruction based on W. (D.).

[121] Failure to include a W. (D.) instruction or its functional equivalent in a recharge on the standard of proof may, but does not always, amount to reversible error. Ideally, further instructions on the burden and standard of proof should include the W. (D.) formula or its functional equivalent: W. (D.), at pp. 757-758. And, a reiteration is especially important where credibility is a crucial issue for the jury: W. (D.), at p. 757; M. (M.C.), at para. 36.

[122] The failure to recite the W. (D.) formula, or its equivalent, will not, however, be fatal if, on a fair reading of the charge and any recharge, it can be said that the jury could not have been under any misapprehension about the correct burden and standard of proof to apply: W. (D.), at p. 758; M. (M.C.), at para. 38.

[123] In this case, the jury had a written copy of the charge. The five pages of instructions on the onus and standard of proof included the W. (D.) formula. The jury’s question did not refer to any portion of the written instructions or expressly raise any complaint about their adequacy or the jurors’ understanding of them.

[124] Unlike M. (M.C.), where the jury’s question specifically related to assessing credibility thus necessitating an answer that recapped W. (D.), the question in the instant case gave no indication that the jury had lost sight of, or was having difficulty with, the W. (D.) formula, or that it was struggling with assessing credibility. Indeed, the question here was more akin to the second question posed by the jury in M. (M.C.) – a request to review the definition of reasonable doubt. A question that the court held, standing alone, did not strictly require a W.(D.) instruction: M. (M.C.), at para. 45.

[125] Further, no objection was, or is, taken with the content of the charge. Likewise, there was, and is, no allegation of error in the content of the re-charge (with the exception of the timid juror comment discussed below). And, trial counsel did not seek the inclusion, or complain about the omission, of any reference to W. (D.) in the recharge. Viewed both independently, and as a whole, the charge and recharge made it clear that the burden of proof was on the Crown, that it never shifted and that it could only be satisfied by proof beyond a reasonable doubt.

[126] At the end of the day, the crucial message was delivered and the jury could not have been under a misapprehension about the correct burden and standard of proof. The failure to include a re-instruction on W. (D.) was not fatal to the validity of the conviction in the circumstances of this case.

[127] The second complaint about the recharge fastens on the inclusion of:

It’s not a doubt based in fear of making a decision either.

This passage was not included in the main charge; thus, it was not in the written version of which each juror had a copy. Trial counsel for the appellant did not object to its inclusion in the recharge.

[128] It would have been preferable had the trial judge omitted the impugned passage from the recharge, but its inclusion is not fatal: R. v. Zebedee (2006), 2006 22099 (ON CA), 81 O.R. (3d) 583 (C.A.), at paras. 52-53.

[129] The final point about the recharge concerns the effect of some of the language used by the trial judge on the deliberation process. Responses to jury questions must not, expressly or by necessary implication, foreclose or discourage further questions by the jury on the same, related or different subjects: Layton, at paras. 31 and 33.

[130] The response of the trial judge did not include an invitation to the jury to ask further questions if the answer given did not respond adequately to their concerns. On the other hand, the response was consistent with the approach suggested by the appellant’s trial counsel, and indeed the trial Crown, and attracted no objection.

[131] The trial judge did not have the benefit of the reasons of the Supreme Court of Canada in Layton when he responded to the jury’s question. And although his answer came uncomfortably close to the line drawn in Layton, it did not cross it.

[132] In Layton, the trial judge responded to a question seeking clarification on the burden of proof by repeating her original charge (which the jury had copies of) verbatim. She ended her reiteration of the charge by telling the jury there was “very little [she could] add to clarify”. It was the combination of the unaltered charge and the dismissive language that the court held rendered her response unacceptable: Layton, at para. 29.

[133] Here, though the trial judge did not invite further questions from the jury, he did attempt to provide some guidance above and beyond what he had already given. In addition to referring the jury back to the initial instruction, he gave a new description of the burden of proof and emphasized that it rested with the Crown to satisfy that burden beyond a reasonable doubt.

[134] Though it would have been preferable for the trial judge to have provided a more fulsome and considered response, I am not persuaded that his response left open the possibility that the jury’s verdict was cumbered by a misunderstanding of the burden or standard of proof.

CONCLUSION

[135] For these reasons, I would dismiss the appeal.

Released: July 25, 2012 “KF”

“David Watt J.A.”

“I agree K. Feldman J.A.”

“I agree M. Dambrot J. (ad hoc)”