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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Samuels, 2013 ONCA 551
DATE: 20130918
DOCKET: C52516
Weiler, Blair and Strathy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Samuels
Appellant
Faizal Mirza, for the appellant
John Patton, for the respondent
Heard: May 23, 2013
On appeal from the conviction entered on April 14, 2010, and the sentence imposed on May 31, 2010, by Justice A. Donald K. MacKenzie of the Superior Court of Justice, sitting with a jury.
Strathy J.A.:
[1] The appellant was charged with living off the avails of prostitution (Criminal Code s. 212(1)(j)), living off the avails of prostitution of a person under 18 (s. 212(2)), aiding the complainant to engage in prostitution (s. 212(1)(h)) and of uttering a threat (s. 264.1(1)(a)). He was acquitted of the living off the avails offences, but was found guilty of the lesser offence of attempting to live off the avails of prostitution of a person under 18 and of aiding the complainant to engage in prostitution. He was acquitted of uttering a threat. He was sentenced to 18 months’ incarceration. He appeals his conviction and sentence.
[2] The appellant advances several grounds of appeal. In my view, the dispositive one is the trial judge’s failure to instruct the jury on the impermissibility of propensity reasoning in accordance with the decision of the Supreme Court of Canada in R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, and this Court’s decision in R. v. B. (C.) (2003), 2003 32894 (ON CA), 171 C.C.C. (3d) 159. As a result, and for the reasons that follow, I would order a new trial.
A. THE FACTS
[3] The complainant left her grandmother’s home at 17 to work as a stripper. She needed a place to live and another stripper, C., introduced her to the appellant, Robert Samuels. He was the tenant of a two-bedroom apartment and was, according to his evidence, looking for another roommate. She moved into a spare bedroom in his apartment on November 11, 2007, and stayed there until November 15, 2007, the period covered by the indictment. Two other women, K. and J., were also living in the apartment. The complainant testified that she shared a room with J. and that K. slept with the appellant.
[4] The complainant testified that after she moved in, the appellant drove the women to a hotel where they used his computer to post prostitution advertisements on the Craigslist website. He then drove them to an apartment on Bloor Street, where they engaged in prostitution. She gave the money she earned to a woman called “JoJo”, who ran the establishment. She also went to the Church and Wellesley area with the appellant and others for the purposes of prostitution. She initially told the appellant that she was 22 years old, but on the night of November 14, she told him she was 17.
[5] On November 15, 2007, the complainant contacted her grandmother because she was afraid of the appellant and wanted to escape his control. The grandmother called the police, who came to the Bloor Street apartment and took the complainant to the station, where she gave a videotaped statement. With the complainant’s assistance, the police determined that the Craigslist advertisements were still in place and were being updated. They obtained a warrant to search the appellant’s apartment for computer equipment, and for clothing and false identification belonging to the complainant.
[6] In the course of the search the police seized:
a computer, being used by K. and another woman to access Craigslist;
four cell phones;
a notebook, with a picture of “Tinkerbell” on the cover, containing various entries, some prostitution-related;
two handwritten notes, one of which appeared to be a draft of a letter to the writer’s mother;
two books, one called “Pimping Ain’t Easy” and the other “Pimpology”; and
$1,660 in cash.
[7] The Tinkerbell notebook stated near the front, “This Notebook belongs to [a nickname for K.]”. It contained such mundane entries as a grocery list and a list of chores. It also contained descriptions of several women by age, background, weight and chest size, daily records of appointments, including customers’ names, duration of appointments and prices, the phone number shown in some of the Craigslist advertisements and the address of the Bloor Street apartment.
[8] One of the handwritten notes, on Comfort Inn stationery, said, in part:
Hi mom I know I haven’t talked to you in forever and you are kinda rite on what you think I am doing ... I am NOT selling my body. I work at a place called blue loougen. It is a message place with no extars meaning NO SEX NO ORAL.
[9] The police later extracted from the computer photographs of women in sexually explicit poses and internet links to prostitution advertising. They also extracted text messages from the cell phones.
[10] These materials included the following:
approximately 40 “thumbnail” photographs, showing partly clothed or nude women in sexually explicit poses;
about 20 pictures and images, described as “Craigslist Pictures on Computer”, some showing women in erotic poses;
photographs of the appellant in various settings with some of the women shown in the photographs, as well as with other men; and
text messages, taken from one of the cell phones which had the phone number listed in some of the advertisements, containing, among others, messages from potential customers making inquiries about services, prices and appointments.
[11] In addition, the Crown introduced, through one of the police officers, twelve advertisements downloaded by the police from the “Erotic Services” section of Craigslist, containing sexually explicit photographs of women and advertising sexual services and prices. In some cases, the contact telephone number listed in the Craigslist advertisements matched the number of one of the cell phones found in the appellant’s apartment. Some of the photographs matched images of women found on the appellant’s computer. Most of the advertisements were posted either before or after the dates of the alleged offences in the indictment.
[12] That cell phone contained some text messages from K., including one that said “Hey, can we do any out calls?” Two of the other cell phones found in the appellant’s room had his cell phone number programmed to it. The Tinkerbell notebook found in his apartment also contained references to a nickname for K., the numbers of two of the cell phones found in his room, a reference to Craigslist and the address of the Bloor Street apartment.
[13] At trial, the appellant denied any involvement in pimping and denied pimping the complainant. He said K. and the complainant were simply tenants in his apartment and denied that he had taken them to work as prostitutes.
[14] The appellant acknowledged that he owned the computer and had possession of the cash and the two books about pimping. Although he conceded that his computer contained pictures of naked women, including K., and that some of K.’s pictures had been posted to an escort services site on Craigslist, he denied that he was responsible for the photographs and internet postings. He pointed out that he did not have exclusive use of the computer and said he regarded his computer in much the same way as his television – it was there for everyone to use.
[15] The only Crown witnesses, apart from police officers, were the complainant and the rental agent for the appellant’s apartment. The appellant testified. He called several witnesses, including the complainant’s grandmother, some of his friends, including his girlfriend, and C., who testified that she introduced the complainant to the appellant, but only to help him to find a roommate. She testified that K. was not the accused’s girlfriend and was not sleeping with him. She denied that she was acting as a recruiter of prostitutes for the appellant.
B. the ruling on admissibility
[16] The trial judge made a number of pre-trial rulings.[^1] It is only necessary to review his ruling on the exclusion of the evidence derived from the search of the appellant’s apartment. The defence sought to exclude this evidence on the ground that its admission would have a prejudicial effect on the fairness of the trial, which would outweigh its probative value. The defence asserted that the admission of the evidence would lead the jury into the error of using the evidence for an improper purpose, such as propensity reasoning. In particular, the defence argued that:
a. the titles and contents of the two books had no probative value in relation to the charges against the appellant and would lead the jury to draw improper inferences;
b. the cell phones did not belong to the complainant and the text messages were to and from persons who were unknown and their admission would have a prejudicial effect;
c. the images in the computer of scantily-clothed or nude women in sexually provocative poses and photographs of the appellant with some of the women were prejudicial and without probative value, because there was no evidence the appellant had exclusive use of the computer and no evidence of complaints made by anyone shown in the photographs; and
d. the Tinkerbell notebook, according to its cover, “belongs to [a nickname for K.]” and the writing in the book by someone other than the complainant had no probative value.
[17] The Crown acknowledged that this evidence could have some prejudicial effect, but contended that this was outweighed by its probative value, namely that it was confirmatory of the complainant’s evidence and was necessary to assist the jury in evaluating the complainant’s evidence on the one hand, and the appellant’s on the other. The Crown said that any prejudicial effect could be addressed by an instruction to the jury about the proper use to be made of the evidence, to prevent findings based on propensity reasoning.
[18] The trial judge permitted the evidence to be introduced. He found that some of the evidence, such as the two books, the text messages, the computer contents and the “Tinkerbell” notebook, could be confirmatory of the complainant’s allegations. The text messages could also go to the appellant’s state of mind, even though they did not specifically refer to the complainant. He concluded that the probative value of this evidence outweighed its prejudicial effect. He suggested that any prejudicial effect of the text messages could be “allayed, if necessary, by a limiting instruction having regard to the evidence to be adduced at trial.”
[19] No mid-trial instruction was requested at the time this evidence was admitted and none was given.
C. THEORIES OF DEFENCE AND CROWN
[20] In his closing address, defence counsel told the jury that the case was essentially one of credibility as between the complainant and the appellant and he argued that the appellant’s evidence raised a reasonable doubt about his guilt. He submitted that on the complainant’s own evidence, the appellant was never in the Bloor Street apartment, never spoke to JoJo and never saw the appellant in contact with JoJo. He submitted that there was reasonable doubt about whether the appellant knew what was going on in the Bloor Street apartment and whether he received any money from the complainant’s prostitution.
[21] Defence counsel contended that the computer pictures, the Craigslist advertisements and the text messages were unconnected to the complainant and were simply “distraction”:
There’s not one piece of evidence, of all the other videotapes, all the other computer images you’ve seen, all the cell phones that you’ve seen, that connected to [the complainant]. Nothing’s about [the complainant]. I’m sure you’ve been wondering where’s the picture that’s going to come up with [the complainant]. Where is the text message from [the complainant]. There’s none of that. The text, the computers, the notes, none of it has anything to do with [the complainant], there’s no evidence. And none of it was put to [the complainant].
You’ll recall [the complainant] is on the stand for quite some time. None of those images were put to her, does she know is this her, is that her. None of them were connected to her. None of them were – they were put to her in the sense of can you recognize this. Nothing was her. She didn’t recognize any of those images being her. None of the files had anything to do with her. None of the Craigslist advertisements had her name, had her description, had her picture. So, there’s all this other evidence. Sure, what is it evidence of? It’s distraction. The issue is [the complainant] was not being pimped by Mr. Samuels, that’s the issue. Whether there’s all sorts of other evidence, that’s just distraction from that main issue.
[22] Anticipating the Crown’s argument, defence counsel added that the text messages and pictures would be used by the Crown to make up for the lack of evidence of a “traditional pimping scenario” by showing inflammatory and “grimy” “pornographic pictures”:
There’s going to be a lot of emphasis on these text messages, a lot of emphasis on these computer pictures. Why? Because we don’t have the traditional pimping scenario here. We don’t have the grimy details of violence and abuse, so how do we – how does the Crown, you know, bring that element out? Let’s show lots of pornographic pictures that are on the computer, to add that element of that’s, you know, a level of griminess, that level of, you know, this is not something that, you know, sits well with us. So, show these pictures.
[23] The Crown’s theory, as put to the jury in counsel’s closing, was that the appellant allowed the complainant to stay in his apartment, rent free, because he saw an opportunity to profit from her willingness to engage in prostitution. He enlisted her to join his existing “stable” of women, K. and J., who he was pimping. He supplied the accommodation and transportation and he had the tools of the trade, including cell phones and the computer containing photographs and advertisements to sell sexual services. He also had “how to” books and substantial amounts of cash.
[24] The Crown’s position was that the appellant’s evidence was not credible. Crown counsel told the jury:
Quite simply, the Crown’s position is that Mr. Samuels lied to you repeatedly, over and over again. He lied to you about his relationship with K. And if he’s prepared to lie to you about his relationship with K., he’s prepared to lie to you about the relationship with [the complainant].
[25] The Crown went on to point out that the pictures used for the Craigslist advertisements were on the appellant’s computer and accessible to him, “a few clicks away” from his own personal pictures. The Crown asked the jury to consider whether, if K. was only a roommate as the appellant alleged, she would have put compromising pictures of herself on his computer. The Crown said that his computer was being used “because he’s managing the operation”.
[26] Crown counsel explained the relevance of the computer and cell phone evidence to the jury as follows:
So, when my friend says, oh, what’s the big deal about all this other evidence, well, it is a big deal. It confirms a major part of [the complainant]’s evidence when she says that K. and J. were working for Mr. Samuels. Their pictures are on his computer. The Craigslist pictures were on his computer. Four phones are in his bedroom. One of those phones comes back to the Craig’s listing. One of those phones, the Craigslist phones, has a text message going to Mr. Samuel’s phone, saying, “Are we doing out calls” at a time approximately – I think it was November 1st. So, 11 days prior to [the complainant] being involved with Mr. Samuels, there’s this text message.
So, that’s what all that evidence is about. It confirms and can restore your faith in [the complainant]’s ability to be credible and reliable. She says that they were working for him, and there is an abundant amount of evidence to suggest that they were working for him.
[27] On the subject of the two books, the Crown said:
And I pause here to say this. Mr. Samuels is not being prosecuted for having bad taste in literature. We’re not here because he was found with those two books. We’re here because of all the evidence that he has been found in possession of and all the evidence that we have.
[28] This comment, while perhaps a witty throwaway, invited the jury to consider all the evidence found in the accused’s possession in order to determine his guilt. As I will explain, the trial judge was required to explain the test to be met before the jury could use this evidence and the permissible and impermissible uses of it, if the jury found it met the test.
D. The Trial Judge’s Instructions
[29] In his instructions to the jury, the trial judge made several references to the material seized from the appellant’s apartment and the computer files and text messages discovered by the police.
[30] He referred first to the handwritten notes and the Tinkerbell notebook, explaining that they could be used as circumstantial evidence of the nature of the transactions taking place from the appellant’s apartment. He told the jury that the documents could not be used for the truth of their contents and that the weight to be given to them was a matter for the jury. He said:
The handwritten materials cannot be used to prove the truth of the factual contents of the handwritten materials. The handwritten material, however, can be used to establish the fact that they were made and as circumstantial evidence of the nature of the transactions being conducted in and from the accused’s apartment on Burnhamthorpe. This evidence, being circumstantial in nature, will be considered by you together with all the evidence you’ve heard at the trial in arriving at your verdict. Again, as judges of the facts, you will decide what weight should be given to it. However, as I’ve mentioned, you cannot use it to prove the contents, the truth of the contents of the handwritten material.
[31] He then referred to the evidence of one of the police constables who had searched the appellant’s apartment and interviewed K. and C., who were found in the appellant’s apartment, but who denied that they worked in the sex trade. The same officer had determined the phone numbers of the cell phones found in the appellant’s apartment and correlated them to advertisements on Craigslist. He confirmed that some of the advertisements referred to K. under her “stage name”. The trial judge explained:
[The officer’s] involvement was also involving the investigation of two of the cell phone numbers, and that is, checking those numbers by correlating them to the Craigslist erotic section. You’ve heard about that. Craigslist has a section, escort and – erotic I guess is the proper term. Those section ads are for escort prostitution services and also to obtain photos of sex trade workers in those sources. He also testified that some of the search results he obtained on the Craigslist erotica section did refer and were applicable to one of the females who were found in at the apartment at the search and that is this K. under her stage name... He did ask the two females what their involvement was in terms of whether they were being pimped and both denied that they were sex trade workers. They also declined to give any statements.
[32] The trial judge also instructed the jury with respect to the cell phone data extracted by the police and contained in three exhibit binders. He said:
You will have those binders available to you that you can look and peruse at length. But I will want you to recall that some of these messages, both the call histories, text messages, et cetera, were to the accused on his cell phone numbers. Other messages were from the accused on his cell phone numbers. We have no evidence as to the true identity of the person or persons who may have originated the calls or messages to the accused. In this situation, these call histories and the text messages cannot be used to prove the factual contents of the call histories and text messages. However, those call histories and text messages can be used to establish the fact they were made and may be used as evidence of the state of the mind of the addressee, that is, the accused.
[33] He explained that the evidence was circumstantial and would have to be considered with all the other evidence and that it was up to them to determine what weight to give it. He added that if the jury found that the accused was the originator of any of the calls or text messages, they could use the evidence to prove the factual contents of the messages.
[34] Near the conclusion of his review of the evidence, just before he gave a W.D. instruction, the trial judge gave the jury the following caution:
There’s one thing that you must keep in mind, ladies and gentlemen, particularly when you are reviewing the exhibits, particularly those exhibits that have the pictures from the computer that relate to the Craigslist erotic area section. The charges that the accused is facing here do not relate to any acts of prostitution of any persons whose names have been bandied about here. They relate solely to the allegations against the accused with respect to the complainant.
[35] The issue before us is whether this instruction was sufficient, in the context of the charge as a whole.
E. The Submissions of Counsel
[36] The appellant submits that, having ruled that the Crown could adduce text messages about sexual services, advertisements of sexual services, and provocative photographs related to sexual services - many of which had no connection to the complainant and related to conduct outside the time frame of the indictment - it was incumbent on the trial judge to caution the jury that they were not to use this evidence to find that the accused was a “bad person” with a propensity to commit prostitution-related offences. The appellant contends that this was particularly necessary because: (a) the material was voluminous; (b) there was no attempt to “vet” or edit the evidence, to separate out the messages, photographs and notes that were relevant and temporally related to the charges; and (c) the nature of the material was likely to offend the jury and was highly prejudicial to the appellant.
[37] This position was summarized in the appellant’s factum as follows:
This was highly prejudicial evidence of past and post charge conduct tending to demonstrate that the accused was a person of bad character with a general propensity to associate with prostitutes, commit crimes of a nature similar to the one in question, and therefore was a person more likely to have committed that [sic] crime in question. Without a strong judicial caution there was a risk that the jury would use the evidence for such a purpose or punish him for uncharged conduct. It is possible that propensity reasoning played a role in the verdict, particularly when one considers the absence of corroboration the Appellant knew she was under the age of 18 and the frail evidence of control, direction etc.
[38] The appellant submits that the trial judge’s caution did not go nearly far enough. He says that in the context of the large volume of unfiltered and inflammatory material, there was a real risk that the jury would use the evidence to reason that the appellant had a general propensity to engage in prostitution-related activity, was a person of bad character and that they should punish him, if not for the crimes at issue, then for his past misconduct. He says that the need for such an instruction was manifest, because the danger of propensity reasoning had been addressed on the application to exclude the evidence and the Crown had acknowledged that an instruction to the jury could be used to neutralize the prejudicial effect of the evidence.
[39] The Crown, on the other hand, submits that the impugned material was neither similar fact evidence nor evidence of propensity. It was part of the narrative and corroborative of the complainant’s evidence of what happened to her – she was conscripted by the appellant and placed in a pre-existing milieu of prostitution. She used the appellant’s computer to access an escort services website. The Crown submits that the circumstantial evidence was temporally related to the offences charged and corroborated the underlying relationship between the complainant and the appellant.
[40] The Crown submits that the trial judge recognized the need for a limiting instruction and he gave an instruction tailored to the circumstances: reminding the jury that the charges against the appellant related to his relationship with the complainant and not to the other women in the apartment.
[41] With this background, I now turn to the applicable legal principles.
F. The Legal Principles
[42] Evidence may be admissible for one purpose but inadmissible for another. Where the evidence relates to conduct that is extrinsic to the charges before the court, it may be irrelevant and inadmissible if used for one purpose, but relevant and admissible if used for another. The trial judge is required, as he did here, to weigh and balance the evidence to determine if the prejudicial effect related to the forbidden purpose outweighs its probative value for the proper purpose.
[43] The courts have observed in cases such as R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128 and R. v. J.A.T. 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 52, that evidence of such extrinsic misconduct carries three particular risks:
a. the jury may conclude that the accused is a “bad person” and convict on the basis of propensity reasoning that he/she is likely guilty of the offence charged;
b. the jury may seek to punish the accused for past misconduct or for conduct unrelated to the offence; and
c. the jury may be confused, and their attention may be deflected by the analysis of the misconduct.
[44] Courts have frequently stressed the need to “inoculate” the jury against the risks of becoming side-tracked by such impermissible reasoning. For example, in D. (L.E.), Sopinka J., writing for the majority, observed at pp. 128-129:
In a case in which similar fact evidence is admitted, the trial judge should charge the jury in a manner that will minimize as far as possible the dangers referred to above. The jury should be instructed that if it accepts the evidence of the similar acts, that evidence is relevant for the limited purpose for which it was admitted. The jury must be specifically warned that it is not to rely on the evidence as proof that the accused is the sort of person who would commit the offence charged and on that basis infer that the accused is, in fact, guilty of the offence charged.
In the instant case, the trial judge gave the jury no such warning. The similar fact evidence was treated simply as part of the whole body of evidence on which the jury was to determine innocence or guilt. The purpose of the admission of the evidence was not identified and its use was not limited, although the trial judge advised the jury at the time the evidence was admitted that he would give instructions as to the use that could be made of it. Furthermore, the jury members were not warned that they were not to engage in the prohibited line of reasoning to which I have referred. I conclude, therefore, that the charge to the jury was not adequate.
[45] In J.A.T., Watt J.A. explained the elements of a jury instruction where evidence of extrinsic misconduct has been admitted at para. 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).
[46] It is well settled that this kind of instruction is not confined to cases of similar fact evidence and is required in all cases “where the dangers associated with ‘bad personhood’ reasoning exist”: R. v. B.(C.) (2003), 2003 32894 (ON CA), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 25. The same point was recently made by this court in R. v. Chamot, 2012 ONCA 903, 296 C.C.C. (3d) 91, at paras. 62-63:
The jurisprudence is clear that when there is a real risk that evidence properly admitted for one purpose could be used by the jury for an improper purpose, the trial judge must caution against that misuse of the evidence: see e.g., R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at p. 691. The risk of misuse of evidence is particularly high in cases like this one where the Crown alleges morally reprehensible conduct in the context of the long-term abuse of one or more children within a household. When a jury hears the kind of evidence this jury heard, the trial judge must make it clear that the jury cannot use the evidence to infer that the accused is a bad person worthy of punishment regardless of his or her culpability on the specific allegations. The trial judge must also tell the jury that it cannot infer from that evidence that because the accused is the kind of person likely to abuse children, he or she is therefore guilty of the specific allegations.
The jurisprudence requiring a proper limiting instruction is loud and clear. For example, in R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, the charges alleged that the accused had assaulted his niece over a number of years. Other children in the family came forward to give evidence of the physical abuse and brutality within the home. After explaining that the evidence of the accused's mistreatment of the other children was admissible to show the condition and atmosphere within the home and to explain the absence of any complaints, the court held that the trial judge should have given a proper limiting instruction. Iacobucci J. for the majority held at p. 734:
Given that the testimony might have a strong prejudicial effect on the jury and that the jury might then convict on the basis that the accused is a bad person of the sort likely to commit the offences in question, clear directions to the jury about the use they could make of the testimony were essential. More specifically, the judge was required to explain clearly in the instructions to the jurors that they must not infer from the evidence that tended to show the appellant's bad character that the appellant was guilty because he is the sort of person who is likely to commit the offences in question. [Emphasis added.]
This court has repeatedly applied the ratio from B. (F.F.) in cases like this one when properly admitted evidence inevitably blackened the character of the accused: see e.g. R. v. M. (B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at pp. 9-10, 14; R. v. J.A.T., 2012 ONCA 177, 290 O.A.C. 130, at paras. 55, 67.
G. Application of the Principles
[47] I begin with the proposition, set out in R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, at p. 613, that in cases such as this, where a trial judge has exercised his or her discretion to admit cogent but prejudicial evidence on the basis that the probative value outweighs its prejudicial effect, “the trial judge is in the best position to assess the atmosphere of the trial and the effect that the evidence or instruction may have on a jury hearing the case [and] the trial judge's decision on these kinds of issues should not be lightly interfered with on appeal.”
[48] It is also well-settled that a jury must be properly instructed, not perfectly instructed. Failure to tell jurors everything they might have been told is not misdirection: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 69-70. Likewise, the message can be given to the jury in different ways and the question is whether or not the instruction accomplished its purpose, not whether it follows a particular formula: R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 2.
[49] In fairness to the trial judge, he received no assistance from counsel on this issue. There were extensive pre-charge discussions, in the course of which counsel were provided with the portions of the charge dealing with both the trial judge’s general legal instructions and his instructions specific to the charges. Neither counsel requested a caution with respect to propensity reasoning in relation to the evidence at issue. As this court observed in R. v. J.S., 2012 ONCA 684, 292 C.C.C. (3d) 202, at para. 40, the failure of counsel to object must be accorded considerable weight in such circumstances.
[50] Nor did defence counsel object after the charge. The failure of counsel to object is a factor that can be taken into account, but it is not determinative: see Chamot, at para. 73.
[51] Finally, I appreciate the context in which jury instructions are prepared, in the course of and immediately following a lengthy trial, in real time, without much time for research and calm reflection, and under pressure to keep the attention of the jury and complete the trial efficiently.
[52] Having said that, I am satisfied that the evidence required a caution to the jury. The Crown and the trial judge recognized it in the context of the ruling on admissibility. The trial judge’s instruction went part way. In my view, it did not go nearly far enough.
[53] As I noted earlier, the Crown invited the jury to consider “all the evidence that [the accused] has been found in possession of.” This played to the perfectly human tendency of the jury to reason that if the appellant was found in possession of material relating to pimping, he must be a pimp, and to jump to the conclusion that he must have pimped the complainant. The trial judge did not tell the jury that before making any use of the evidence, they had to determine whether they believed the appellant when he disavowed any knowledge of or connection to the evidence. They should have been instructed that if they believed him, they could make no use of the evidence.
[54] They should also have been instructed that if they were satisfied that there was a link between the appellant and any or all of the pictures and Craigslist advertisements, the text messages, the Tinkerbell notebook and the pimping books, there were certain things they could use that evidence for and certain things that they could not use it for. They could use it for the purposes described in the pre-trial ruling, namely as going to the credibility of the complainant and the appellant, as potentially corroborative of the complainant’s evidence, and as evidence of the appellant’s state of mind. They could not use it for the purpose of determining that the appellant was a bad person, a low-life pimp who exploited women and who deserved to be punished. They could not use it for the purpose of reasoning that because he pimped other women he must have pimped the complainant. They could not permit their examination of the evidence to distract them from the question of whether the appellant’s guilt had been established beyond a reasonable doubt with respect to the complainant specifically.
[55] It seems to me that when the trial judge made his ruling on the admissibility of the evidence, having specifically averted to the issue of propensity reasoning, it would have been timely to discuss the instructions the jury should receive on the permissible use of the evidence as well as the advisability of a mid-trial instruction: see Justice David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005), at p. 202.
H. The Application of the Proviso
[56] The appellant submits that it was mandatory that a caution be given and this is not a case in which the proviso in s. 686(1)(b)(iii) of the Criminal Code should be applied.
[57] The Crown submits that there was a fair trial and a fair charge. The trial judge explained the thrust of the positions of both sides and handled the central issues competently and fairly. The Crown submits that there is no reasonable possibility that the verdict would have been different had a more extensive caution been given.
[58] The Crown bears the burden on this issue and must establish that there is no reasonable possibility that the verdict would have been different had the error not been made: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 117-118; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28.
[59] The Crown has not discharged its burden. The jury deliberated for a considerable time. They began their deliberations on Monday, April 12, 2010 at about 1:00 p.m. The jurors deliberated late into the evening that day, all day April 13, 2010 until late in the evening and all day April 14, 2010, until late in the evening, when they returned with their verdict at 10:05 p.m. There were nine questions from the jury, some containing several parts. These questions were answered by the trial judge, who gave further instructions on some issues.
[60] The jury acquitted the appellant on two counts, convicted on one and convicted of a lesser included offence on another.
[61] This is not a case in which the evidence was so overwhelming that a conviction was the only possible verdict. Nor can I say that there is no reasonable possibility that the verdict would have been different had the jury been properly charged concerning the use they should make of the evidence. There was a clear credibility contest between the appellant and the complainant and there was a real risk that the jury would use the evidence, not to test the credibility of these two witnesses, but to convict the appellant because he was a “bad person”, a pimp who prostituted other women.
I. Conclusion
[62] For these reasons, I would allow the appeal on this ground and order a new trial. It is therefore unnecessary to consider the other grounds of appeal or the sentence appeal.
Released: “RAB” “G.R. Strathy J.A.”
“SEP 18 2013” “I agree K.M. Weiler J.A.”
“I agree R.A. Blair J.A.”
[^1]: Ruling on s. 8 Charter Breach Issues and s. 24(2) Exclusion Application, 2010 ONSC 3202; Ruling on Pre-Trial Motion Respecting Exclusion of Certain Evidence, 2010 ONSC 3200; Ruling on Pre-trial Motion Respecting Exclusion of the Evidence or Part Thereof on Video Recording made Pursuant to Section 715.1 C.C., 2010 ONSC 3201; Ruling on Defence Cross-examination of Complainant on Previous Sexual Acts, 2010 ONSC 3203.