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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.M.V., 2015 ONCA 457

DATE: 20150622

DOCKET: C58162

Laskin, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.M.V.

Appellant

Joseph Wilkinson and Joanna Baron, for the appellant

Avene Derwa, for the respondent

Heard: June 15, 2015

On appeal from the convictions entered on October 18, 2013 and the sentence imposed on February 4, 2014 by Justice Anne Mullins of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

van Rensburg J.A.:

[1] The appellant appeals his convictions for two counts of sexual assault and one count of indecent assault. He also appeals his sentence of ten months in jail.

[2] The incidents leading to the charges occurred between 1979 and 1985 when the complainant was between ten and 16 years old. The complainant testified that she was sexually assaulted by the appellant, her uncle, at his photography studio and at his condominium. The defence was that the assaults did not occur at all.

[3] The appellant was tried by judge and jury. He contends that the trial judge erred in admitting certain evidence, in failing to give limiting instructions with respect to the use of that evidence, and in her charge to the jury.

[4] Before addressing each argument in turn, I note that this was a case that turned on credibility. The Crown’s case rested almost entirely on the complainant’s evidence, which was vigorously challenged by defence counsel. The defence argued that the complainant’s evidence was implausible and that her behaviour during the intervening 30 years was inconsistent with her having been sexually abused by the appellant.

The “Detroit” Trip Evidence

[5] The complainant testified about a trip she took to Detroit with the appellant and his wife when she was 17 years old. She described two incidents of sexual touching that occurred during that trip. The appellant denied that the trip took place. He asserts that the trial judge erred in admitting the complainant’s account of the Detroit trip, which was evidence of an uncharged incident of sexual assault, or in failing to give a limiting instruction in respect of such evidence.

[6] With respect to the admissibility of the evidence, the appellant contends that, although no objection was taken to the evidence at trial, evidence of the incident, which involved a “brazen” assault that occurred while the appellant’s wife was present, had little probative value and yet was highly prejudicial and ought therefore to have been excluded.

[7] While evidence of prior discreditable conduct is presumptively inadmissible, the context and proposed use of the evidence (particularly its use by the defence) is important in determining whether the evidence is admissible, whether a limiting instruction is required and the content of any such instruction: R. v. W.B., [2000 5751 (ON CA)], [2000] O.J. No. 2184 (C.A.), at paras. 90-91 and 94-95.

[8] In the present case, the complainant testified about the Detroit incident in chief without objection from the defence. This was not a case where, as the appellant’s counsel now suggests, defence counsel simply reacted to the evidence once it had been led, and did the best she could with it. The complainant’s account of the Detroit incident was known to the appellant, had been explored in the preliminary inquiry, and therefore did not take the appellant by surprise. At trial, defence counsel cross-examined the complainant in detail about the Detroit incident, and called evidence from the appellant and his wife to contradict her account. When the trial judge, during pre-charge discussions, asked why the jury had heard this evidence, as it had not been charged in the indictment, defence counsel stated that it was admissible as part of the narrative.

[9] As this court noted in R. v. W.B.at para. 90, defence counsel’s position at trial is a key consideration in assessing the probative value versus prejudicial effect of the evidence. Defence counsel used the complainant’s evidence about the Detroit incident to attempt to undermine her credibility, exploiting an inconsistency between her evidence at trial and a prior statement about the size of the bed, pointing to the implausibility that the complainant would have shared a bed with her aunt and uncle, with her uncle in the middle, and challenging her account of the events having occurred when her aunt was present. For this incident, a defence witness (the aunt) was able to directly contradict the complainant’s account. The defence also questioned the complainant’s apparent enthusiasm to travel to Detroit with someone who had sexually abused her in the past. According to the defence, the complainant’s evidence about the Detroit trip made “no sense”.

[10] In these circumstances, the evidence of the Detroit trip was clearly admissible and there was no error on the part of the trial judge in failing to exclude it. As Doherty J.A. noted in W.B., at para. 91: “The fact that the evidence did not have [the intended] effect on this jury cannot condemn the [defence] strategy as inappropriate, nor can it open the door in this court to an attack on the admissibility of the evidence that ignores the manner in which the entire trial was conducted.”

[11] The appellant contends that the trial judge ought to have instructed the jury as to the limited use it could make of the evidence about the Detroit incident, and cautioned against propensity reasoning. The trial judge gave the specific instruction that defence counsel requested: she told the jury that the counts the appellant was facing “[have] nothing to do with any events that are alleged to have occurred near or in Detroit Michigan”.

[12] While it may well have been appropriate for the trial judge to have given a limiting instruction warning the jury against propensity reasoning, I am not persuaded that any reversible error occurred from her failure to do so. It was clear to the jury that the appellant was facing three specific charges and that he was not charged with respect to the Detroit incident. It was also clear that the case turned on credibility and that the defence relied on aspects of the complainant’s evidence about the Detroit trip in challenging her overall credibility. A further direction to explain the proper and improper uses of propensity reasoning in this case may well have distracted the jury from its task and was unnecessary.

[13] Accordingly, I would dismiss this ground of appeal

Prior Consistent Statements and Adverse Inference Instruction

[14] In his second ground of appeal, the appellant complains of deficiencies in the charge regarding the complainant’s evidence that between the ages of eight and 14 she had mentioned the assaults to a girl named Tammy, to children in the playground when she was in grade five, and to her brother John and cousin Linda. She also testified that she told her boyfriend (now husband) about the abuse when she was 18. The appellant asserts that the trial judge ought to have instructed the jury that the evidence of the prior disclosures was admissible for two limited purposes: as narrative to provide chronological context and for the truth of their contents only to the extent that they tended to rebut the defence’s suggestion that the complaint had recently fabricated her allegations. The jury ought to have been instructed further that the evidence was not admissible to corroborate the complainant’s allegations.

[15] Prior consistent statements are generally inadmissible to buttress a witness’ testimony. However, in this case, the evidence of the complainant’s disclosures was admitted, with the agreement of the defence, as part of the narrative, and to rebut an allegation of recent fabrication. In her charge, the trial judge cautioned the jury about the hearsay dangers of what the others said to the complainant in response to her disclosures. She did not however provide any further instruction.

[16] While it is generally appropriate for a trial judge to give an instruction about the proper and prohibited uses of a prior consistent statement, and while such an instruction may well have been advisable, the failure to do so was not a reversible error in this case. In R. v. Demetrius, [2003] O.J. No. 3729 (C.A.), at paras. 21-22, Sharpe J.A. observed: “Although limiting instructions are generally required in cases involving prior consistent statements, there are circumstances where a limiting instruction may not be required. The adequacy of a trial judge’s instructions must be assessed in the context of the particular case on a functional basis”.

[17] In the present case, there was no real danger that the substance of the prior statements would be used for the proof of their contents to corroborate the complainant’s account, when the statements, as related at trial, contained no details. The complainant simply testified that she had told others the appellant was touching her, and with respect to her brother and Tammy, what they had said in response. The defence relied on the complainant’s evidence about the prior disclosures to undermine her credibility. Among other things, the defence suggested that it was implausible that the abuse would continue after the complainant had told others about it, and that the complainant’s husband would have maintained a cordial relationship with the appellant if she had told him about the abuse. In her charge, the trial judge referred to the complainant’s evidence of her disclosures, and repeated the defence position that, while the complainant claimed to have told others about the alleged abuse at the time, no one had corroborated her claims of disclosure, and the defence witness Tammy had denied any such disclosure. In these circumstances, the instructions were adequate.

[18] The appellant also argues that the trial judge erred in failing to instruct the jury that it was open to them to draw an adverse inference against the Crown for failing to call any of the recipients of the disclosure as witnesses. This instruction was requested at trial and refused by the trial judge, after she heard argument from counsel and considered the relevant case law.

[19] I would not interfere with the trial judge’s decision not to give an adverse inference instruction in this case. None of the potential witnesses could have corroborated the sexual assaults themselves; at most they would have bolstered the complainant’s prior consistent statements, which would have been an improper use of the statements. The trial judge properly focussed on the permitted and prohibited use of the evidence, which was introduced in response to the defence of recent fabrication. It is apparent from the transcript that the trial judge was concerned about the potential confusion for the jury if they were instructed about the need for corroboration and their possible distraction from the central issues at trial. In any event, the point that no one had corroborated the complainant’s evidence of disclosure and that this was contradicted by Tammy, was put squarely to the jury in the trial judge’s charge.

[20] For these reasons, I conclude that there was no error in the treatment of the complainant’s prior disclosures in the trial judge’s charge to the jury.

The Appellant’s Alleged Admission

[21] The third ground of appeal is that the trial judge failed to instruct the jury on how to consider an alleged admission by the appellant. The complainant testified about a phone call she had received from the appellant just after she called her aunt and uncle to thank them for a gift for her 40th birthday. According to the complainant, the appellant asked whether she remembered when they used to “fool around”, and that he said that he had done a lot of bad things, but that that was the worst. In his testimony at trial, the appellant acknowledged a call at the time of the complainant’s birthday, but denied that he had made the inculpatory statements.

[22] The appellant says that the trial judge ought to have instructed the jury that they could not use this evidence of an admission by the appellant for its truth, unless they were satisfied that he had in fact made the statement.

[23] I see no error in the trial judge’s instructions in relation to the alleged admission. The charge contained a W. (D.) instruction, instructed the jurors that they could believe some, all or none of the evidence of a witness, and fully canvassed the question of reasonable doubt. It would have been obvious to the jury that they could not consider the alleged admission by the appellant, unless they were satisfied that he had made the statement recounted by the complainant.

[24] Accordingly, I would not give effect to this ground of appeal.

Unduly Complicated Charge

[25] The fourth ground of appeal is that the jury charge was overly complicated because the trial judge instructed with respect to consent when this was not an issue at trial. This argument is without merit. The trial judge emphasized repeatedly that the “real issue” in the case was whether the events ever took place. The brief references to consent when the trial judge was reviewing the essential elements of the offences were not objected to by defence counsel, and in the circumstances would not have distracted the jury from their task.

Unreasonable Verdict on Count One

[26] Finally on the conviction appeal, the appellant argues that the verdict on count one was unreasonable because the Crown failed to prove the date of the offence, which was a necessary element.

[27] Count one involved an assault that occurred in the appellant’s condominium, when the complainant said she was there to watch on TV and tape a Live Aid concert. The indictment referred to the offence occurring “on or about July 13, 1985”. Under cross-examination the complainant was uncertain as to the specific date.

[28] The appellant asserts that because the Crown failed to prove a specific element of the offence – its date – the conviction cannot stand. This argument was not raised at trial. In this case, the specific date was not an essential element of the offence. The offence was anchored to a specific event, not a specific date. The appellant was not misled or prejudiced in his defence by the date on the indictment; indeed his defence was that it could not have happened as he was occupied photographing weddings every Saturday in the summer, and therefore would not have been at the condominium as alleged by the complainant. I would therefore reject this ground of appeal.

Sentence

[29] The appellant seeks leave to appeal his sentence of ten months in prison, asserting that the sentence was harsh and excessive and that the trial judge did not give proper consideration to the option of a conditional sentence.

[30] In my view, the decision to impose a custodial sentence of ten months and to refuse a conditional sentence was reasonable in the circumstances and adequately explained. The sentence was fit and there was no error in principle. The trial judge correctly recognized that the key sentencing factors in respect of sexual assault are denunciation and deterrence. Although she recognized that such objectives may be achieved through a conditional sentence, she rejected that option. The custodial sentence of ten months properly reflected the mitigating circumstances of the appellant’s age, health problems and the passage of time since the offences, as well as the aggravating circumstances of an offence committed by a person in a position of trust against a vulnerable child on repeated occasions. In my view, the trial judge did not, as asserted by the appellant, give undue emphasis to the appellant’s lack of remorse but properly considered this as one of a variety of factors in determining whether a conditional sentence was appropriate.

DISPOSITION

[31] I would therefore dismiss the appeal, grant leave to appeal sentence and dismiss the sentence appeal.

Released: “J.L.” June 22, 2015

“K. van Rensburg J.A.”

“I agree John Laskin J.A.”

“I agree E.E. Gillese J.A.”