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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. W. L., 2015 ONCA 123

DATE: 20150224

DOCKET: C58510

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W. L.

Appellant

Counsel:

Frances S. Brennan, for the appellant

Peter Scrutton, for the respondent

Heard: February 18, 2015

On appeal from the conviction entered on December 12, 2012 by Justice Roland J. Haines of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] A jury found the appellant guilty of counts of sexual interference, invitation to sexual touching and sexual assault. The complainants, of whom there were two, were between 12 and 15 years of age when the offences allegedly occurred. The appellant was in a position of trust in relation to each complainant.

[2] The defence advanced at trial through the testimony of the appellant and of his wife was that the conduct alleged by each complainant did not occur.

[3] The appellant advances five grounds of appeal. Each alleges an error in the trial judge’s final instructions to the jury. None attracted an objection at trial. Not when counsel were given the opportunity to make submissions on the proposed draft charge. And not after the charge had been delivered.

[4] The first ground of appeal relates to an omission in the trial judge’s instructions on the use the jury could make of evidence of each complainant in determining whether Crown counsel had proven the case against the appellant in relation to the other complainant. This across counts use of evidence of similar acts was the subject of a ruling by the trial judge, a ruling that is not contested here.

[5] The deficiency alleged is that the trial judge did not give an express instruction that enjoined jury use of the evidence to conclude that the appellant was a bad person, and thus likely to have committed the offences charged.

[6] We agree that it obviously would have been better had the injunction against “bad personhood” reasoning been included in express terms in the instruction in accordance with the specimen instructions routinely used in this province. That said, however, we are not prepared to say that the omission caused the appellant any prejudice. The evidence at issue was not evidence of extrinsic misconduct. It did not reflect any general propensity or prior discreditable conduct on the part of the appellant. The jury was apprised of the permitted use of the evidence in unexceptionable terms and was expressly told that they were not permitted to find the appellant guilty on any count simply because they had found him guilty on another count. In this case, that was a sufficient prophylactic against “bad personhood” reasoning.

[7] The second ground of appeal alleges error in the trial judge’s failure to rehearse the similarities and differences in the evidence of the complainants as part of his instructions on the jury’s potential use of the evidence as evidence of similar acts across the counts.

[8] The trial judge reviewed the similarities in the evidence of the complainants that were relevant for the jury’s consideration in deciding whether a pattern of similar conduct had been established as a basis for them to apply the evidence across counts. The similar act evidence here was not adduced to prove identity and thus was not required to meet the more stringent degree of similarity required in such cases. In those cases, dissimilarities are more telling than in cases, such as this, where the issue to which the evidence is directed is the occurrence of an event and the credibility of a witness who has testified about it. The trial was brief. The evidence was fresh in the minds of the jury and rehearsed in sufficient detail by the trial judge to point out the dissimilarities in the accounts. The jury was told of the requirement that they find similarity as a condition precedent to use the evidence across counts. The relevance of dissimilarities seems unlikely to have been lost on them.

[9] The third ground of appeal alleges error in failing to leave evidence of collusion to the jury as a basis for an instruction that would diminish the probative force of the evidence of similar acts.

[10] In his ruling on the Crown’s application to adduce across counts use of the evidence of each complainant, the trial judge considered and rejected a claim of collusion as a basis to dismiss the Crown’s application. The evidence is barren of any suggestion of deliberate, practiced collusion. The submission of inadvertent collusion because one complainant was aware of the fact of the other’s complaint affords no basis for such an instruction as is sought here.

[11] The final two grounds of appeal may be considered together. Each alleges an error, either of omission or commission, in the trial judge’s instructions about the manner in which the jury was to assess the credibility of each complainant. Trial counsel, who saw and heard each witness testify, sought no such instruction. The trial judge identified several inconsistencies in the evidence of each complainant and pointed out the intellectual limitations of one of the complainants as a factor for the jury to consider. He fully and fairly summarized the defence position in relation to each. In this brief trial what was said adequately equipped the jury to perform their adjudicative function.

[12] The appeal is dismissed.

“E.E. Gillese J.A.”

“David Watt J.A.”

“David Brown J.A.”