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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. A.W.B., 2015 ONCA 185

DATE: 20150320

DOCKET: C56446

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.W.B.

Appellant

Mark J. Sandler and Amanda Ross, for the appellant

Sean Doyle, for the respondent

Heard: August 26, 2014

On appeal from the conviction entered by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury, on October 17, 2012.

Tulloch J.A.:

[1] The appellant was charged with four counts of sexual offences involving the same teenage female complainant, who was a close family friend. The incidents on which the charges were based occurred between March 1, 2008 and September 23, 2008. During this period of time the complainant was 13 and 14 years old. The particulars of the charges are as follows:

• Count 1: Sexual Assault, from March 1 to September 23, 2008;

• Count 2: Sexual Interference (Sexual touching), from March 1, 2008 to April 30, 2008;

• Count 3: Sexual Interference (Sexual touching), from May 1, 2008 to September 23, 2008; and

• Count 4: Invitation to Sexual Touching, from May 1, 2008 to September 23, 2008.

[2] Following a trial by judge and jury, the appellant was convicted on counts 1 and 3, and acquitted on counts 2 and 4. Count 1 was conditionally stayed pursuant to Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced on count 3 to imprisonment for one year followed by three years of probation.

[3] The appellant contests his conviction.

[4] The appellant raises two main grounds of appeal. First, he submits that the verdicts are inconsistent and therefore unreasonable. Second, he submits that the trial judge erred in her charge to the jury in a number of ways, including:

(a) by directing the jury that they must consider the evidence on each count separately;

(b) by failing to give a Vetrovec[1] warning with respect to the complainant’s evidence;

(c) by telling the jury that they could consider both the differences and the similarities between the complainant’s videotaped statement and her testimony;

(d) by failing to instruct the jury that the timing of the disclosure of the sexual assaults, combined with other factors, could give rise to a negative inference about the complainant’s credibility;

(e) by instructing the jury that certain evidence was capable of corroborating the complainant’s evidence;

(f) by failing to provide a limiting instruction with respect to evidence of the appellant’s alleged treatment of his children; and

(g) by telling the jury they could consider certain hearsay statements to explain the complainant’s state of mind and actions.

[5] At the outset of oral argument, counsel for the appellant abandoned grounds (c) and (g), above. As such, I will not be dealing with these grounds in my analysis. For the reasons that follow, I would dismiss the appeal.

Background

[6] The appellant, A.W.B., lives with his wife and their three children. The complainant, G.A.S., and her mother, R.A., were close friends of the appellant and his family, and would often visit them socially. The appellant was a father figure to G.A.S. Beginning in 2006, R.A. babysat the appellant’s children while the appellant and his wife were at work. Whenever the complainant’s mother would babysit, the complainant would often accompany her. From March to June 2008, R.A. and G.A.S. visited A.W.B.’s home approximately 3 times per week.

[7] The appellant usually returned home from work while G.A.S. and her mother were babysitting. Sometimes, he invited them to stay for dinner. He would barbecue or order take-out. G.A.S. often spent time with the appellant in the garage while he barbecued. Afterwards, she sometimes drove with him in his car to pick up his wife from work.

The Alleged Assaults

[8] G.A.S. testified that in March and April 2008, when she was still 13 years old, she used the appellant’s hot tub with the appellant’s children. The appellant was sometimes in the hot tub. She stated that he rubbed his foot up her leg. At first she thought it was unintentional, because the hot tub was crowded, but when it happened more than once, she believed he did it deliberately.

[9] G.A.S. testified that when she was 13 years old, the appellant began talking to her about birthday “patty whacks” – one smack on the buttocks for each year of age. On one occasion, the appellant struck her buttocks. This continued after she turned 14. She turned 14 in the middle of May 2008.

[10] G.A.S. also testified that before and after she turned 14, when she was playing pool at the appellant’s home, the appellant pushed his crotch up against her buttocks. As well, on occasion, after she turned 14 when she accompanied the appellant to pick up his wife from work, the appellant would put his hand on her left knee and squeeze it. Sometimes, according to G.A.S., the appellant took her hand and placed it on the crotch of his jeans, holding it there. G.A.S. also said that the appellant often drove to pick up his wife when he was drunk.

[11] G.A.S. testified that at the end of May 2008, on more than one occasion, when she and the appellant were barbecuing dinner in the garage, he hugged her, kissed her, and rubbed her buttocks. She stated that sometimes the appellant turned the garage lights off, pushed her up against the wall and kissed her. She testified that sometimes he put his hands up her shirt to feel her breasts above her bra.

[12] According to the complainant, on September 23, 2008, she and her mother were at the appellant’s house. The appellant was drinking beer and working in the backyard. At the end of the day, G.A.S. helped the appellant move a portable pool or slide to the basement. When they returned to the backyard, the appellant pushed her up against the outside wall of the house and put his tongue in her mouth, pushed up her bra and fondled her breasts.

Disclosure of the Alleged Assaults & G.A.S.’s Statement to Police

[13] R.A. testified that on September 26, 2008, she and the complainant were at the appellant’s home when she observed the complainant leaving the appellant’s oldest daughter’s room, crying and asking to go home. While they were driving home, G.A.S. was upset, and she disclosed to her the assault which occurred on September 23. R.A. wanted to contact the police, but G.A.S. refused.

[14] The assaults were first disclosed to police by R.A. in November 2009 and G.A.S. subsequently provided a videotaped statement to police on December 7, 2009.

[15] In her videotaped statement, the complainant stated she had told her best friend, J., about the assaults during the time period when the assaults were occurring. When the police asked for J.’s last name, G.A.S. requested that the police not contact her because she was dealing with her own problems and was unlikely to remember. She later testified that she and J. had drifted apart. The detective did not think it was necessary to contact G.A.S.’s best friend, and did not do so.

[16] The complainant also told police the appellant locked his children in their rooms, threw his youngest daughter on her bed, and threw a dresser drawer at his son.

Appellant’s Statement to Police

[17] The appellant made a statement to police in which he acknowledged having a close relationship with the complainant, that she sometimes was in the garage with him when he barbecued and as well, at times she would accompany him when he picked his wife up from work. He admitted to pinching G.A.S.’s knee in the car. He also confirmed that on September 23, 2008, G.A.S. helped him bring something inside. He stated that on that night, he hugged G.A.S. and kissed her on the cheek to thank her for helping. In response to the officer’s suggestion that accidental touching might have occurred, the appellant agreed that he may have accidentally grazed G.A.S.’s breasts.

G.A.S.’s testimony at the Preliminary Inquiry

[18] G.A.S. testified at the preliminary inquiry that the appellant pushed her up against the wall in the garage once. In her statement to police, she said it had happened multiple times. In her testimony at trial, she acknowledged that her evidence at the preliminary inquiry on this point was not true. As well, she acknowledged that it was important to tell the truth. In re-examination, G.A.S. explained that she found the lawyer at the preliminary inquiry confusing, and she gave the testimony in question at the end of the preliminary inquiry, when she wanted to leave.

A. ANALYSIS

[19] As stated above, the appellant raises essentially two arguments: that the verdicts are inconsistent and therefore unreasonable, and that the charge to the jury was deficient in a number of ways. For the reasons outlined below, I would reject each ground of appeal.

(1) Are the verdicts inconsistent, and therefore unreasonable?

[20] The appellant submits that in order for him to have been acquitted on count 4, invitation to sexual touching, the jury must have rejected the complainant’s testimony that the appellant took the complainant’s hand and put it over his crotch while he was driving. He argues that the jury’s verdict can only be interpreted as a rejection of the complainant’s credibility. It was therefore unreasonable to convict on count 3, as the underlying events took place in the same time frame, and involved the same complainant.

[21] I do not agree. The jury could have accepted the complainant’s evidence on all the counts yet still have acquitted on counts 2 and 4 on the basis of a reasonable doubt raised by the appellant’s evidence. As pointed out by the respondent, the assessment of the evidence as between the testimony of an accused and that of prosecution witnesses is never a credibility contest. For this reason, an acquittal in a case in which the accused gave evidence cannot be equated with a rejection of the complainant’s credibility. Therefore, it cannot be said that the acquittal on count four “can only be interpreted as a rejection of the complainant’s credibility” such that the jury was not entitled in law to convict the appellant on any of the counts.

[22] The jury may accept or reject some, none, or all of a witness’s evidence. The appellant’s argument is premised on the assumption that if the jury rejects some of the complainant’s evidence, it must reject it all. This clearly is not the law. As stated by the Supreme Court of Canada in R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7:

The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. The jury is entitled to accept or reject some, all or none of any witness’s testimony. Indeed, individual members of the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous. Similarly, the jury is not bound by the theories advanced by either the Crown or the defence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge. [Emphasis added.]

[23] The jury was entitled to accept some of the complainant’s evidence and reject other aspects. The fact that the jury may have rejected some of the complainant’s evidence does not make it unreasonable for the jury to have accepted other parts of her evidence.

[24] The appellant has not met the onus of establishing unreasonable verdicts as set out by this court in R. v. McShannock (1980), 1980 2973 (ON CA), 55 C.C.C. (2d) 53, at p. 56, and approved of by the Supreme Court of Canada in Pittiman, at para. 7:

Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise.

There is nothing inconsistent about the jury having reasonable doubt on count 4 about whether the appellant took the complainant’s hand and put it over his crotch, while being convinced beyond a reasonable doubt that he touched the complainant for a sexual purpose in one of the ways alleged in count 3.

[25] According to the Supreme Court in Pittiman, at para 8, “different verdicts may be reconcilable on the basis that the offences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses.”

[26] Although the alleged acts occurred in the same year between the appellant and the complainant, they were not “inextricably interwoven”: McShannock, at p. 55. The acts occurred over a period of several months, and varied in content. As explained below, the different verdicts can be reconciled on the evidence.

[27] The hot tub, “patty whacks” and pool table incidents formed the subject of count 2. The “patty whacks”, pool table incidents, the squeezing of the complainant’s knee in the car, the garage assaults, and the September 23, 2008 assault all fell under count 3. The subject matter of count 4 was the allegation that the appellant placed the complainant’s hand over the crotch of his pants while they were driving. Count 1, alleging sexual assault over the entire period, functioned as a kind of catch-all, and included all the alleged assaults.

[28] The conviction on count 3 and the acquittal on count 2 can be reconciled on the evidence for reasons unrelated to the complainant’s credibility. The jury might have accepted the complainant’s evidence about the “patty whacks” and pool table incidents, but might nonetheless have had a reasonable doubt about the sexual purpose of these incidents, as the trial judge did in her reasons for sentence. The jury might similarly have had a reasonable doubt about whether the hot tub incidents were intentional or accidental, especially considering the presence of others in the hot tub. It could have had no such doubts about the sexual purpose of the garage assaults or the September 23 assault. Either of these assaults could have formed the basis for a conviction on count 3, but were not covered by the dates particularized in count 2.

[29] The acquittal on count 4 and the conviction on count 3 can also be reconciled. The garage assaults and the September 23 assault were the material allegations under count 3, taking into account what I have said above about the “patty whacks” and pool table incidents. Again, count four turned on the allegation that the appellant took the complainant’s hand and placed it on his crotch while they were driving.

[30] These charges related to separate incidents with distinct evidence. While the incidents occurred between the same two people, they occurred at different times over a period of months, under different circumstances, and they involved different kinds of conduct. The garage assaults and the September 23 assault occurred around the appellant’s home when the complainant was assisting the appellant with chores and preparing dinner. The car incident was alleged to have occurred while the appellant was driving drunk to pick up his wife from work. The jury was entitled to accept the complainant’s evidence on some of the incidents and not others, and indeed, there is evidence it could have relied on in doing so, in particular relating to the September 23 assault.

[31] The complainant’s mother testified that the complainant wanted to leave the appellant’s home after the final assault on September 23 and was in a bad mood that evening. She testified the complainant did not want to return to the appellant’s house on September 26, which was unusual. This evidence tended to support the complainant’s account that she had been assaulted on September 23. The complainant’s evidence on the circumstances surrounding the car rides was subject to significant challenge, in particular her evidence that the appellant frequently drove after he had had too much to drink, and that she went with him despite this. Her mother’s evidence contradicted hers in this respect. This contradiction regarding the circumstances surrounding count 4 could have made a difference on that count, but would not have required the jury to reject the complainant’s evidence about the September 23 assault.

[32] It was open to the jury to accept the complainant’s evidence with respect to the September 23 assault or the garage assaults and to convict the appellant on count three on that basis, even if it had a reasonable doubt about whether he invited her to touch him in his car in the manner alleged under count four. Taking a realistic view of the evidence, the verdicts can be reconciled on a rational basis.

(2) Was the charge to the jury deficient?

[33] The appellant alleges a number of errors committed by the trial judge in her charge to the jury. Below, I will address each of the alleged errors individually, but at the outset, it must be borne in mind that a jury charge must be viewed contextually to determine whether or not it achieves the function for which it is intended. This standard was set out by this court in R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 44-45, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 459:

We impose no requirement of perfection in jury instructions: R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at paras. 1-2. We test the adequacy of jury instructions in a functional way, holding them up against the purpose they are required to fulfill: Jacquard, at para. 32.

Appellate review is not the legal equivalent of a laboratory experiment. Although a comparison to a post-mortem examination may be uncomfortably close, we do not dissect the final instructions, examine them every which way, find a misplaced word or ill-suited phrase and pronounce it the cause of death. We examine the charge as a whole, together with the evidence given at trial, all of it, and the positions of the parties: Jacquard, at para. 33; R. v. Vézeau, 1976 7 (SCC), [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, at pp. 285-86 S.C.R. An important, but not dispositive factor in determining whether appellate intervention is warranted is the failure of counsel to object to what is later advanced as prejudicial error: Jacquard, at paras. 36-38; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, p. 143 S.C.R.; R. v. Thériault, 1981 180 (SCC), [1981] 1 S.C.R. 336, [1981] S.C.J. No. 32, at pp. 343-44 S.C.R.

(a) Direction to consider the evidence on each count separately:

[34] The appellant submits that the trial judge erred when she instructed the jury that it must consider each charge separately and must not use evidence relating only to one charge in making its decision on any other charge. While the appellant acknowledges the instruction to consider each charge separately was accurate, he argues that as the defence relied upon the complainant’s lack of credibility generally as the basis for rejecting her evidence in its entirety, the trial judge should have made clear to the jury that its reasonable doubt on counts on which it acquitted (and the evidentiary or credibility problems giving rise to that reasonable doubt) was relevant to whether it could be satisfied beyond a reasonable doubt on the remaining charges.

[35] I do not agree. I agree with the respondent that trial judge’s initial instruction that the jury was not to use evidence relating to one count in considering their decision on any other count served to remind the jury that each count in the indictment was a separate charge. The appellant relies on R. v. P.E.C., 2005 SCC 19, [2005] 1 S.C.R. 290, at para. 1, to support this ground of appeal. However, that case simply holds that a trier of fact is entitled to apply credibility findings to different counts. The instruction objected to on appeal does not prevent that.

[36] The trial judge’s use of the word “only” makes it clear that the instruction was appropriate: “You must not use evidence that relates only to one charge in making your decision on any other charge” (emphasis added). She did not prevent the jury from applying findings of the complainant’s general credibility to all counts.

[37] Later in the charge the trial judge dealt squarely with the issue of the complainant’s credibility and instructed the jury that this evidence must be considered in respect of each count:

The overriding issue in this case is the credibility of the complainant [G.A.S.]. Credibility relates to a witness’s truthfulness and reliability. Crown counsel must prove the essential elements of each alleged offence beyond a reasonable doubt. In connection with each offence alleged in this case, the Crown’s case is dependent on the evidence of [G.A.S.]. Consequently, with respect to each offence under consideration, you must be satisfied beyond a reasonable doubt that [G.A.S.]’s evidence is credible on the essential elements of that offence as I have defined them, or that offence is not proven. You do not need to find that [G.A.S.] is credible in everything that she said, apart from the essential elements of the offence under consideration.

You must consider and weigh all the evidence cumulatively and not in isolation or individually.[Emphasis added.]

[38] When viewed in the context of the charge as a whole, it is clear that the trial judge adequately instructed the jury on the complainant’s credibility. As stated above, the trial judge instructed the jury that “[t]he overriding issue in this case is the credibility of the complainant” and that the jury “must consider and weigh all the evidence cumulatively and not in isolation or individually”. The jury would not have believed that it was precluded from applying general credibility findings to different counts.

(b) Direction respecting the credibility of the complainant and the lack of a special caution or Vetrovec warning:

[39] The appellant submits that the trial judge erred in failing to instruct the jury to view the complainant’s evidence with caution. The appellant argues that such a warning was necessary due to the complainant’s “acknowledged history of lying”, the fact that she did not tell the truth on one point at the preliminary inquiry, and the inconsistencies in her testimony.

[40] I do not agree. A trial judge’s decision to give a Vetrovec caution is a matter of discretion, rather than a duty: R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 2. This exercise of discretion “should generally be given wide latitude by appellate courts”: R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, at p. 614. While a Vetrovec warning may be mandatory if the concern over the credibility of the witness and the importance of the evidence are great, there was no such requirement in this case. Furthermore, while there may be inconsistencies in a witness’s evidence and concerns with the witness’s credibility, provided the trial judge acted judicially in exercising his or her discretion, an appellate court should accord a high degree of deference to the exercise of discretion.

[41] Vetrovec warnings are not restricted to cases of traditional “unsavoury witnesses”. As observed by the Manitoba Court of Appeal in its recent decision, R. v. Fatunmbi, 2014 MBCA 53, 310 C.C.C. (3d) 93, at paras. 36 and 39, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 366:

[I]nconsistencies in a witness’s evidence may attract a cautionary warning even if the witness does not fit the traditional definition of an unsavoury witness, but a warning is not required in every case where there are inconsistencies. If that were the case, almost every witness would attract a warning, as defence counsel can usually find some inconsistencies in a witness’s evidence, especially if the witness has given one or more police statements and then testified in an earlier preliminary inquiry or other proceeding.

[A] trial judge must weigh the importance of the testimony or the evidence to the determination of guilt and the significance of the credibility problems to determine whether to give a warning. [Emphasis added.]

[42] In the present case, the complainant’s evidence was important to the Crown’s case. However, the fact that her evidence was “essential” does not make a Vetrovec warning mandatory: R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 74, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 193. The degree and nature of concern with regards to her credibility must be considered. The appellant points to certain problems with the complainant’s credibility, such as her history of lying to her mother, inconsistencies in her testimony, and the fact that she admittedly made an untrue statement at the preliminary inquiry. However, the mere fact that a witness’s credibility was in issue is not sufficient to interfere with the trial judge’s discretion not to give a Vetrovec warning.

[43] Trial judges must consider not only the degree to which credibility is a concern; they must consider as well the nature of the particular credibility problems, and whether lay members of the jury are adequately equipped to assess the witness’s credibility. According to Carroll, at para 78, “[t]he rationale that underpins a Vetrovec caution originates in the concern that, for certain types of witnesses, lay members of the jury simply lack the critical experience to adequately gauge the credibility of these types of witnesses and the reliability of their evidence”. The concerns raised by the appellant regarding the complainant’s credibility relate to lies that she had told or misstatements she made in the past. There is no reason to think that a contemporary Canadian jury would not be capable of taking this into account given the trial judge’s instructions on her credibility and the position of the defence in that respect.

[44] The trial judge did not consider it necessary to give a Vetrovec warning. This was fully within her discretion to decide. What is more, defence counsel did not ask the trial judge to provide a Vetrovec warning or to strengthen the language in her charge regarding the complainant’s credibility. In my view, the trial judge was aware that the complainant’s credibility was in issue, and adequately conveyed this in her charge to the jury. As such, this ground of appeal must fail.

(c) Direction on the complainant’s delay in reporting:

[45] The appellant submits that trial judge erred when she instructed the jury that the complainant’s delay in reporting the sexual assaults could not on its own give rise to an inference against the complainant’s credibility. The appellant contends that when the delay is combined with other factors, such as the complainant’s efforts to dissuade the police from contacting her best friend, the potential inference that the complainant lied about disclosing sexual abuse to her best friend, and the fact that she continued to frequent the appellant’s home and vehicle, the jury was entitled to draw a negative inference about the complainant’s credibility. The appellant asserts that the trial judge should have instructed the jury accordingly. Again, I would reject this ground.

[46] The trial judge’s instruction on the timing of disclosure of sexual abuse was appropriate and reflected the guidance provided by the Supreme Court of Canada in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 63-65. The trial judge was careful to state in the charge to the jury that “[a] delay in telling someone about sexual abuse, standing by itself, will never give rise to an adverse inference against the credibility of a complainant” (emphasis added). The appellant has cited no authority compelling a trial judge to instruct a jury on inferences that may be drawn when delay in disclosure is considered in conjunction with other factors. Furthermore, the appellant did not object to the jury charge. The jury was aware of the defence’s concerns about the complainant’s credibility in this respect. In the circumstances, I see no error regarding this aspect of the judge’s charge.

(d) The review of the Crown’s position on corroboration:

[47] The appellant submits that the trial judge erred by instructing the jury that the evidence of the complainant’s mother and the appellant’s statement to police corroborated the complainant’s testimony. The appellant relies on this court’s decision in R. v. G.(G.) (1995), 1995 8922 (ON CA), 97 C.C.C. (3d) 362, at p. 375, for the proposition that “[e]vidence that is equally consistent with either of two diametrically opposed possibilities does not … lend support to either one of them.” The appellant submits that the evidence of the mother and the appellant was neutral, and not corroborative of the complainant’s evidence.

[48] The Crown submits that the evidence of the appellant and the mother could be probative of issues in dispute. Particularly, this evidence could be probative of opportunity to commit the offence, the complainant’s credibility, and could also provide an explanation for why the complainant continued to frequent the appellant’s residence and for the timing of the complaint. The Crown relies on R. v. M.(F.S.) (1995), 1996 4012 (ON CA), 111 C.C.C. (3d) 90 (Ont. C.A.), at p. 97, which distinguishes G.(G.) on the basis that where opportunity is in dispute, evidence that is probative of opportunity can be confirmatory of the complainant’s allegations.

[49] I would reject this ground. At the outset, I would note that corroborating evidence was not required for the jury to convict the appellant in this case: Criminal Code, R.S.C. 1985, c. C-46, s. 274.

[50] Reading this part of the charge as a whole, it is apparent that it did not function only to catalogue evidence the Crown submitted was corroborative. It also served as a summary of the evidence relied on by the Crown and a summary of the Crown’s position on the evidence more generally. It included, for example, some evidence from R.A. and the appellant that contradicted the complainant’s account, and an explanation of the Crown’s position on that evidence. Not all of the evidence summarized by the trial judge was put forward as potentially corroborative of the complainant’s evidence.

[51] Second, many of the references to potentially corroborative evidence related to issues raised over the course of trial. For example, defence counsel challenged why the complainant would continue visiting the appellant’s home when she was being assaulted and questioned her delay in disclosing the abuse. The appellant and R.A.’s evidence on the closeness of the families tended to explain the particular issue of her delay in disclosing, namely, the high value the complainant said she placed on these relationships and her desire not to hurt the appellant’s family as a whole.

[52] Third, to the extent that the trial judge referred to evidence that could not corroborate the complainant’s account according to the definition of corroboration in G.(G.), this evidence was innocuous. The trial judge clearly instructed the jury that the complainant’s credibility on the essential elements of the offences charged was the main issue in the trial. The jury was more than capable of appreciating that the consistency between witnesses on tangential and not particularly contentious points did not bolster the complainant’s credibility on the essential elements of the offences.

[53] Finally, the trial judge did not state that this evidence in fact corroborated the complainant’s account. Her review of the evidence was made under the heading “Position of the Crown”. Upon completing her summary of the Crown’s case, the trial judge stated, “As I said, that is the position of the Crown”. The trial judge then proceeded to lay out the position of the defence, which included inconsistencies between the evidence of the complainant and that of her mother. The jury could not have been left with the understanding that the mother’s evidence was definitively corroborative of the complainant’s evidence; rather, it was correctly left with the understanding that this was the Crown’s position, and it was for them to decide whether the mother’s testimony and the appellant’s recorded interview corroborated the complainant’s account of events on material issues.

(e) Failure to provide a limiting instruction on evidence of the appellant’s alleged mistreatment of his children:

[54] The appellant submits that the trial judge erred by not providing a limiting instruction with respect to evidence, which was contested by the defence, that the appellant exhibited violent conduct towards his own children. The appellant argues that there is a risk the jury could have wrongfully used this evidence to infer that because he abused his children, he was more likely to be guilty of the offences charged. The respondent submits that the evidence would not cause moral prejudice or reasoning prejudice, and that realistically, the jury would only have used this evidence to assess the complainant’s credibility. Alternatively, the respondent relies on the curative proviso and submits that this evidence would not have affected the verdict, noting that defence counsel never sought a limiting instruction at trial.

[55] While I do agree with the appellant that it would have been preferable for the trial judge to provide a limiting instruction, in my view, when the charge and the evidence are considered in their entirety, the absence of a limiting instruction would not have affected the verdict.

[56] It is settled law that it is impermissible for a trier of fact to reason that a person is more likely to have committed the offence charged because of his or her bad character: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 139. Evidence of bad character “that shows only that [the accused] is the type of person likely to have committed an offence with which she or he is charged is inadmissible”: R. v. T.(J.A.), 2012 ONCA 177,288 C.C.C. (3d) 1, at para. 51. When bad character evidence is admitted into a jury trial, a limiting instruction should be provided to the jury. The instruction includes three elements, as summarized by Watt J.A. at para. 53 of T.(J.A.):

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).

[57] This rule “is of general, but not unyielding application”: T.(J.A.), at para. 65.

[58] A limiting instruction would certainly have been preferable in the present case. The complainant’s videotaped statement contained evidence that the appellant threw a drawer at one of his children, threw another child onto her bed, and locked his children in their bedrooms. This evidence created the risk that the jury would impermissibly reason that the appellant was more likely to have committed the sexual offences charged because he was violent towards his own children. Evidence that the appellant had exhibited violence toward his children had very little probative value and is, when viewed in isolation, prejudicial. A limiting instruction should have been provided.

[59] However, there are several reasons why the absence of a limiting instruction, standing alone, does not create a reversible error in this case.

[60] First, the prejudicial evidence was not a prominent element in the evidence, viewed as a whole. The trial judge summarized for the jury the relevant evidence on each count. The evidence in question was not included in these instructions.

[61] Second, to the extent that the evidence in question was mentioned in the charge to the jury, it was in the context of the Crown’s and defence’s positions on the complainant’s credibility. In explaining the Crown’s position that the complainant’s evidence was corroborated by her mother’s evidence, the trial judge stated that the complainant’s mother testified to “hearing a noise and seeing [one of the appellant’s children] running from the area, in circumstances similar to what [the complainant] had told the officer in her videotaped interview in recounting that [the appellant] threw a dresser drawer at [his child]”. In the review of the defence position, the trial judge pointed out how the complainant’s evidence on the appellant’s conduct differed in her various statements and was contradicted by her mother’s testimony. In this context, the jury would have understood that the evidence could be used to assess the complainant’s credibility. No other purpose was suggested.

[62] Finally, it should be noted that the defence never requested a limiting instruction at trial and did not object to the charge on this basis. While this is not determinative, it is an important factor: Simon, at para. 45. I would reject this ground of appeal.

B. disposition

[63] For the reasons outlined above, I would dismiss the appeal.

Released: “DW” Mar 20, 2015

“M. Tulloch J.A.”

“I agree. David Watt J.A.”

“I agree. M.L. Benotto J.A.”

[^1]: Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811.