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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. M.A.J., 2015 ONCA 725
DATE: 20151029
DOCKET: C56345
Laskin, Hourigan and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.A.J.
Appellant
Marie Henein and Matthew Gourlay, for the appellant
Tracy Kozlowski, for the respondent
Heard: August 27, 2015
On appeal from the conviction entered by Justice Peter Daley of the Superior Court of Justice, sitting with a jury, on February 22, 2012, and from the sentence imposed on November 30, 2012, with reasons reported at 2012 ONSC 6415.
Pardu J.A.:
A. introduction
[1] This appeal is about sexual assaults of a child, allegedly committed over 20 years ago. At trial, the Crown alleged that the appellant sexually abused his niece for nearly four years, beginning when she was 11 years old. The appellant denied any sexual contact with the complainant. He was convicted on charges of sexual assault and sexual interference, and sentenced to six years imprisonment.
[2] Before this court, the appellant is challenging both his conviction and his sentence. He raises four grounds of appeal:
(1) The appellant applies for leave to adduce fresh evidence that, in his submission, renders the conviction unreliable.
(2) The appellant submits that the Crown’s cross-examination of the appellant was inflammatory and rendered the trial unfair.
(3) The appellant submits that the trial judge erred by failing to give a limiting instruction to the jury about one of the complainant’s prior statements.
(4) The appellant submits that the sentence imposed was unfit.
[3] For the reasons that follow, I would dismiss the appeal.
B. Fresh Evidence Application
[4] The proposed fresh evidence is an urologist’s report, which states that – contrary to the complainant’s testimony – the appellant is uncircumcised and has never had surgery on his penis. The appellant submits that this evidence undermines the complainant’s testimony on a significant issue and, therefore, undermines the conviction.
(1) Applicable Law
[5] As explained in R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92, an appellate court should consider the following three questions when deciding whether to admit fresh evidence:
(1) Is the evidence admissible under the operative rules of evidence?
(2) Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
(3) What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?
[6] There is no doubt that the proposed fresh evidence is relevant, credible and admissible. Resolution of this issue turns on whether the proposed fresh evidence could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[7] As indicated in Truscott, at para. 77, the court “addresses the admissibility of the fresh evidence with a view to determining whether it sufficiently undermines the reliability of the verdict so as to render the conviction a miscarriage of justice.” Accordingly the analysis must measure the “probative potential of the evidence” considered in the context of the entirety of the trial evidence: Truscott, at para. 100.
(2) Factual context
[8] I turn then to the factual context established by the evidence at trial.
[9] The complainant was the step-daughter of the appellant’s step-brother. When the complainant was nine years old, the appellant began to babysit the complainant and her two brothers regularly, at a house the appellant shared with his then-girlfriend, S.W.
[10] According to the complainant’s evidence, a week before she turned 11, the appellant took her and her brothers to a park. While the boys were playing, the appellant sat down with the complainant and told her that he had feelings for her. She didn’t give the remarks further thought.
[11] The following week the complainant and her brothers were at the appellant’s home. The complainant was lying down on a pull-out couch in the appellant’s living room, because she was feeling unwell. The complainant’s brothers were in the room as well, but were occupied with the television. The appellant lay down behind the complainant and quietly told her that he wanted to “do something” to her. She felt the appellant penetrate her vagina with his penis. Her next recollection was standing in the washroom with the appellant, who was telling her to wipe herself.
[12] The following day, the appellant picked up the complainant and her brothers, and brought them back to his house. The appellant took the complainant to a bedroom upstairs. The appellant told the complainant that he wanted to do what he had done the day before again. The complainant was scared and told the appellant that she wanted to go home. The appellant pinned her down and forced intercourse upon her. The appellant also threatened to kill the complainant if she told anyone.
[13] For the following four years, the appellant repeatedly forced intercourse on the complainant. The complainant resisted and fought back for the first year. However, at some point, she concluded that resistance was futile.
[14] In addition to using force and threats of violence, the appellant used a number of means to control the complainant and keep her from confiding in others. The appellant secretly videotaped the complainant while forcing her to have intercourse with him on one occasion. He later showed her the video, claiming that it proved that she was a willing participant. The appellant threatened to show the video to the complainant’s friends and family.
[15] The complainant became pregnant when she was 13. The appellant took her to the Morgentaler Clinic, where she got an abortion. At trial, the appellant admitted that he helped the complainant obtain an abortion. However, he testified that the complainant approached him to tell him that she had gotten pregnant, and asked for his help.
[16] After the abortion, the complainant became increasingly emotionally distraught. She repeatedly told the appellant that she was going to kill herself, and she attempted to commit suicide. At some point after the abortion, the sexual encounters stopped.
(3) The Proposed Fresh Evidence is not Admissible
[17] The complainant was 30 years old when she testified at trial. However, she was testifying about events she experienced beginning at age 11.
[18] The complainant testified that she saw the appellant’s penis most often when it was erect, but also saw it when it was flaccid. She said the appellant’s foreskin used to disgust her and make her gag. He told her he would get circumcised, “that he was going to get it cut off so that way there wasn’t so much skin hanging.” At some point, the appellant told the complainant that he had undergone an operation and was now circumcised. After he told her that he had been circumcised, the appellant stopped having sex with the complainant for a while. He said it hurt a lot. Afterwards, when intercourse resumed, she noticed that there didn’t seem to be as much skin. She never saw bandages or any signs of surgery. In re-examination the complainant testified that in her adult life she had never seen a circumcised penis, either erect or flaccid.
[19] At trial, the appellant testified in chief that he had never been circumcised or had surgery on his penis. Crown counsel did not challenge his evidence on this issue in cross-examination or question him about it at all. The appellant also called S.W., who testified that the appellant was uncircumcised. Again the Crown did not cross-examine her or challenge her on this evidence in any way.
[20] Defence counsel said nothing about the circumcision issue in his closing address. Crown counsel told the jury that the “appellant says he’s not circumcised.” Crown counsel did not challenge this aspect of his evidence, and suggested to the jury that it may have been difficult for the young complainant to tell whether an erect penis was or was not circumcised. Moreover, the Crown argued, the complainant relied on what the appellant told her, but did not have the experience to be able to tell whether there really had been a change in the appellant’s penis.
[21] In his instructions to the jury, the trial judge put the appellant’s position to the jury, as formulated by the appellant:
[The appellant’s] evidence is supported by other witnesses. In particular, [S.W.] was a credible witness who is worthy of belief. Ms. [W.] has no reason to provide evidence favourable to [the appellant], as they have been separated for over fifteen years, and has not seen him since 2005. In particular, she confirms that [the appellant] was never circumcised, contrary to [the complainant’s] evidence.
[22] By the time this case went to the jury, the proposition that the appellant had never been circumcised was accepted as a given. The appellant’s own evidence on that issue was never challenged by the Crown. An independent witness, S.W, corroborated his evidence.
[23] The only purpose that the proposed fresh evidence could serve would be to further bolster the appellant’s unchallenged evidence that he was not and had never been circumcised.
[24] The proposed fresh evidence could not reasonably be expected to affect the reliability of the verdict or add any probative force to this aspect of the appellant’s evidence at trial. Under these circumstances the proposed fresh evidence does not meet the cogency test for admission on appeal.
C. Improper cross-examination by the Crown
[25] The appellant takes issue with the fact that, at trial, Crown counsel cross-examined the appellant on the risks associated with an abortion. In essence, the appellant submits that the cross-examination, without justification, put moral propositions and inflammatory stereotypes about abortion before the jury, and demonized the appellant without advancing the Crown’s case.
(1) Applicable Law
[26] The relevant inquiry when assessing the impact of an impugned cross-examination is whether it led to a miscarriage of justice within the meaning of s. 681(1)(a)(iii) of the Criminal Code. Crown counsel are permitted, even expected, to conduct a vigorous cross-examination of an accused; however, if the impugned cross-examination prejudices an accused’s defence or brings the administration of justice into disrepute, then an appellate court must intervene: R. v. R. (A.J.) (1994), 1994 3447 (ON CA), 20 O.R. (3d) 405 (C.A.), at p. 412.
[27] Moreover, in deciding whether a cross-examination resulted in a miscarriage of justice, an appellate court must distinguish between questions that are merely improper and questions that compromise trial fairness: R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at para. 22. The impact of the improper questions must be assessed in the context of the complete cross-examination, and the trial as a whole: A.G., at para. 25. A failure by defence counsel to object, though it does not immunize the impugned cross-examination from appellate scrutiny, is a relevant consideration: A.G., at para 24.
(2) The Impugned Cross-Examination
[28] The appellant admittedly arranged an appointment for an abortion for the complainant when she was 13 years old. He took her to the appointment and kept the pregnancy and the abortion secret from her family. The complainant’s step-father was the appellant’s brother, and he said nothing to him or the complainant’s mother.
[29] The appellant testified that the complainant said someone named Cameron was the father, and that she insisted on an abortion and made him promise not to tell her family. The complainant testified that there was no Cameron and that the appellant had impregnated her. She wanted to keep the pregnancy and the abortion secret because she was afraid of getting into trouble with her parents.
[30] The Crown questioned the appellant vigorously about the risks associated with an abortion by cross-examining him on a consent form, signed by the complainant, which outlined the risks of the procedure. It was not established that the appellant had ever seen the document at the time of the procedure.
[31] The appellant points to the following questions as particularly troublesome:
Q. You would never want something to go wrong. You would never want someone to hurt her, correct?
A. Yes.
Q. And you would never have taken her to get anything done that would have hurt her, correct?
A. That’s correct.
Q. So you go and you make your inquiries and you decide to take her for this abortion. So you would have known going into this, either before or at that clinic as the guardian that takes her here, that there is a risk of perforated uterus or other internal organs when one gets an abortion?
A. I’m just hearing that right now from you.
Q. Okay.
A. I don’t know that.
Q. You would have learned that if anything went wrong, it could directly affect her fertility in the future?
A. At the time, I have no idea.
Q. You would have learned that there’s a risk of pelvic – pelvic inflammatory disease post-abortion?
A. I’m just hearing that from you right now.
Q. You would have learned that there’s a high percentage of women who suffer psychological trauma after abortion?
A. I’m just hearing that from you right now.
Q. You would learn that there’s a risk of hemorrhaging after an abortion?
A. I’m just hearing that from you right now.
Q. Or infection or an allergic reaction or – sorry.
A. I’m just hearing that from you today.
Q. Or incomplete abortion, right? You also know that this 13-year-old girl is making a decision to terminate what could potentially be a life, a human life, right?
A. Yes.
Q. And that’s an incredibly large decision for any woman, correct?
A. Yes.
Q. Let alone a 13-year-old girl?
A. Yes.
Q. It’s not something to be taken lightly, correct?
A. Yes.
Q. That’s why doctors spend so much time counselling women who go to get an abortion before it’s done, right?
A. I don’t know that.
Q. That’s why the risks are outlined?
A. I wasn’t aware of that.
Q. So you just showed up at this doctor’s clinic and then let her on her – let her on her go, let her go?
A. Are you talking of the abortion clinic?
Q. Yeah.
A. Yes, I called – called around and eventually I booked the appointment and I took her there.
Q. So you…
A. And they took over from that point.
Q. So you have this 13-year-old girl, your brother’s child. You know it’s better to tell the parents and you don’t. You make the decision to take her for a secret abortion. You walk her in the door, you let her go. You do all of this without knowing any of the risks at all of what she’s getting herself into?
A. I don’t know. I was not aware of the risk. She came to be in trust and it was not an easy decision.
[32] The consent document also recited that complications were “extremely rare” and the risks remote. Crown counsel did not refer to these parts of the document in cross-examination. The consent document made no mention of psychological trauma or to “termination of human life.”
[33] The cross-examination continued:
I’m going to ask the question one more time. You cared enough about her to take her out of the hands of her parents twice to protect her, but you had – didn’t – you didn’t care enough to make sure you were – you secretly were taking her for a surgery at a clinic performed by doctors with, what I would suggest, are well-known risks.
[34] The appellant responded, “[t]hat’s not a fair question.”
[35] Defence counsel did not object at any time during the impugned cross-examination.
[36] In re-examination the appellant testified that he had no medical training or knowledge which would have acquainted him with any risks of the procedure.
(3) The Cross-Examination did not cause a Miscarriage of Justice
[37] The theory of the Crown was that the appellant had held himself out as the protector of the complainant. According to the appellant, he arranged for her to stay with her biological father after he saw a bruise attributed to a blow by her mother. When he became concerned that at age 18 the complainant was having sexual relations with another young man, he called his brother to express his concerns.
[38] By cross-examining the appellant on the risks associated with abortion, the Crown attempted to establish that he was not really concerned about the complainant’s welfare, and that the real reason he arranged the abortion was because he was concerned that his sexual activity might be found out.
[39] I agree that the Crown’s cross-examination was inflammatory and inappropriate for the following reasons:
• The Crown cross-examined the appellant on a document he may have never seen before.
• The Crown’s use of the consent document in cross-examination gave the jury the impression the medical risks referred to were facts established by that document.
• The Crown’s use of terms like “back alley abortion” and “termination of life” was inflammatory and did nothing to advance the jury’s decision making process.
[40] On the other hand, the impugned cross-examination was a small part of a two-week trial. The appellant responded appropriately to the questions. The complainant testified that she was adamant she wanted an abortion; there was no question that the appellant forced the procedure on her. The moral prejudice, if any, associated with the accused’s participation in the secret abortion pales in comparison to his alleged conduct of repeatedly forcing intercourse on a young girl over a four year period. The fact that the appellant arranged for the abortion appointment, took the complainant to the appointment, and kept it and the pregnancy secret was potentially powerful corroboration of the complainant’s evidence that he had intercourse with her.
[41] Furthermore, the appellant was acquitted on the counts charging that he choked the complainant to enable himself to sexually assault her, that he threatened to cause her death, and that he was in a position of trust or authority towards the complainant while touching her for a sexual purpose. This suggests that the jury did not accept the complainant’s evidence uncritically, and that they were not inflamed by emotion so as to engage in wholesale condemnation of the appellant.
[42] While the cross-examination crossed the line, I am not satisfied that it made the trial unfair or resulted in a miscarriage of justice.
D. Failure to give a limiting instruction about one of the complainant’s prior consistent statements
[43] The appellant submits that the trial judge erred by failing to instruct the jury that a statement by the complainant to her boyfriend was not admissible as evidence of the truth of its content, and could not be used to bolster her trial evidence.
[44] A.A., the complainant’s former boyfriend, testified that when she was 15 or 16 years old, the complainant told him that something sexual had happened between her and the appellant. No details of the complaint’s statement to him were elicited. The appellant submits that the trial judge erred by failing to instruct the jury that this evidence could not be used to prove that something sexual had occurred between him and the complainant, and secondly, could not be used as corroboration of her trial evidence about the alleged assaults.
(1) Applicable Law
[45] Prior consistent statements are generally inadmissible because they are viewed as being self-serving and lacking in probative value: R. v. Stirling, 2008 SCC 10, [2008] 1 SCR 272, at para 5. In the same vein, a party is generally prohibited from eliciting evidence that, directly or by implication, only serves to show that a witness previously made the same claim as during their testimony: see R. v. Demetrius (2003), 2003 16618 (ON CA), 179 C.C.C. (3d) 26 (Ont. C.A.).
[46] However, there are exceptions where evidence of a prior consistent statement may be admitted: Stirling, at para. 5. Prior consistent statements may be admissible as circumstantial evidence, to rebut a charge of recent fabrication, to rebut attacks grounded on prior inconsistent statements, and as context for admissible statements, or as narrative: Sidney N. Lederman, Alan W. Bryan, & Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed (Markham, Ont: LexisNexis Canada Inc, 2014), at p. 409; R. v. L.O., 2015 ONCA 394.
[47] Ordinarily, if evidence of a prior consistent statement is admitted in a jury trial, then the trial judge is required to give a limiting instruction to the jury. Specifically, as noted by Finlayson J.A. in R. v. J.E.F. (1993), 1993 3384 (ON CA), 16 O.R. (3d) 1 (C.A.), at p. 476, the jury “must be instructed that they are not to look to the content of the statements as proof that a crime has been committed.” However, failure to provide a limiting instruction need not be fatal. As noted by Sharpe J.A. in Demetrius, at para 21, “[t]he adequacy of a trial judge's instructions must be assessed in the context of the particular case on a functional basis.” It has been noted by this court that a limiting instruction may not be necessary where the defence itself relies on the prior statement, where it is clear to the jury that the prior statement was not offered as proof of the underlying facts, or where the concern about self-corroboration is simply not present: Demetrius, at para 22.
(2) Evidence about Prior Consistent and Inconsistent Statements
[48] The appellant agrees that A.A.’s evidence that the complainant told him she had had sexual contact with the appellant was admissible. The Crown introduced the evidence for the purpose of giving context to A.A.’s evidence that, after this disclosure, he paid particular attention to the complainant’s behaviour when in the appellant’s presence, and observed that she seemed uncomfortable and tried to avoid him. The appellant had elicited in cross-examination of the complainant that she behaved normally around him at family social events and that she acted as if “everything was fine”.
[49] As the following summary of the evidence demonstrates, the statement to A.A. was also relevant to rebut the defence assertion that the complainant had been inconsistent and that her evidence was therefore unreliable, and also to give context to her multiple previous denials of sexual contact with the appellant.
[50] Assessment of the impact of the omission in the charge requires an examination of other evidence about prior consistent and inconsistent statements at trial.
[51] The appellant’s cross-examination of the complainant focused on prior statements by her. The very first questions in cross-examination were as follows:
Q. … you’ve indicated you’ve told a number of people about what happened?
A. Yes.
Q. But you haven’t told anybody the full story, is that fair?
A. Yes.
Q. Sorry, yes, fair I’m – that you haven’t told everybody the full story?
A. Yes.
Q. Okay. And so nobody -- none of your friends or family members that you’ve talked to could come before us and say, “[the complainant] told us this,” and relay everything you’ve just told us, is that fair?
A. Yes.
Q. Okay. The only people you’ve told the whole story to are us in this room today?
A. Yes.
Q. Okay. And you also spoke to the police, I understand, on February 24th of 2010?
A. Yes.
Q. Okay. And you have told them the whole story as well, right?
A. Yes, the police, yeah.
[52] The appellant’s trial counsel cross-examined the complainant about inconsistencies among her statement to police, preliminary inquiry testimony and her trial evidence, for example:
• Whether the first sexual assault occurred on the same day as the park visit where the appellant told her he had feelings for her or a week later.
• Whether her brothers were seated on the pull out couch or on the floor at the time of that assault.
• Whether she and the appellant were covered with a sheet or a blanket at that time.
• Whether the appellant was naked or wearing pants during the second sexual assault.
[53] The purpose of the cross-examination was to suggest to the jury that the complainant’s evidence was not credible or reliable because of these inconsistencies.
[54] In cross-examination, appellant’s trial counsel also focused on prior statements the complainant had made denying any sexual contact with the appellant.
[55] One of the other tenants in the home spoke to S.W. and expressed concern about the relationship between the appellant and the complainant. The complainant testified that the appellant warned her that S.W. was going to speak to her about these suspicions, and told her consequences would follow if she revealed the sexual activity. The complainant, when questioned by S.W., denied any sexual activity with the appellant.
[56] As a result of something said by one of the complainant’s younger brothers, the complainant’s mother and step-father became concerned about her relationship with the appellant. They prohibited her from going to his home for a time, and sent her to stay with her biological father. They also arranged for a medical examination of the complainant. On cross-examination, appellant’s counsel established that the complainant either denied or did not mention any sexual activity to the doctor, and denied to her parents that anything was going on.
[57] According to the complainant’s evidence, when the appellant took her for the abortion, he told her what to say to the staff at the clinic. She complied with his instructions. When asked, she told them that the appellant was not the father, but that she had been impregnated by an older man who then abandoned her.
[58] Appellant’s counsel highlighted each of these prior denials in cross-examination, but also elicited evidence that the complainant made some complaint about the appellant’s sexual treatment of her to a friend when she was 16, to her boyfriend when she was 16, to her cousin when she was 18, to another friend when she was 20, and to her uncle when she was 25. The complainant’s uncle urged her to tell her parents, which she did, though not in full detail.
[59] The overall purpose of the cross-examination was to raise a reasonable doubt that anything sexual had occurred because of the multiple prior denials of any sexual contact with the appellant.
[60] The evidence of the prior consistent statement to A.A. was relevant for multiple purposes:
• To give context to the boyfriend’s evidence that he focused on observing the complainant’s behaviour when in the presence of the appellant.
• To rebut the defence assertion that she had been inconsistent and that her evidence was unreliable.
• To give context to the multiple denials of sexual contact with the appellant. Without this evidence, the jury would have been left with a one-sided impression of the significance of the denials. As observed in L.O. at para. 36:
The jury had to consider the entirety of the evidence relating to L.F.’s various statements, including the consistencies in those statements, in deciding the impact of any inconsistencies in those statements on her credibility and reliability. To the extent that L.F.’s statements were consistent, especially on the central features of the allegations, that consistency could counter, or at least mitigate, the defence claim that L.F. was not credible or reliable because of her many prior inconsistent statements. [Citation omitted.]
(3) The Failure to Provide a Limiting Instruction was not Fatal
[61] The trial judge gave mid-trial and final instructions about the evidence at the preliminary inquiry and the statement to the police, instructing the jury that they could only use the testimony given under oath at the trial as evidence of what actually happened, but that inconsistencies would be considered in assessing whether to believe or rely on the complainant’s testimony.
[62] The final instruction on prior statements to police and at the preliminary inquiry given by the trial judge indicated:
During cross-examination, [the complainant] was referred to evidence she had given at the preliminary inquiry and to a statement she gave to the police. When a witness says one thing in the witness box, but has said something you find quite different on an earlier occasion, your common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of or rely upon the witness’ testimony.
Not every difference or omission will be important. You should consider the fact, nature and extent of any differences in deciding their importance to you in deciding whether you believe or will rely upon the witness’ testimony. You should also consider any explanation the witness gives for the differences.
Whatever you choose to make of the differences, you can only rely upon the testimony given under oath in this trial as evidence of what actually happened. You cannot use the earlier statement as evidence of what actually happened unless you are satisfied the witness accepted it was true while in the witness box.
Even then, like the evidence of any witness, it is for you to say whether or how much you will believe of or rely upon it in reaching your decision.
[63] This case is indistinguishable from L.O. There the same error was alleged. Doherty J.A., at paras. 37-40, stated that :
The appellant also alleges non-direction amounting to misdirection. Counsel argues that the trial judge erred in law in failing to tell the jury that it could not infer the truth of the allegations from L.F.’s repetition of those allegations, and that it could not use the prior consistent statements to confirm or corroborate her testimony.
The trial judge did not give either instruction in her charge. Neither was requested. Certainly, the instructions could have been given and, in a perfect jury charge, would have been given. However, perfection is not the standard. I am satisfied that the failure to give these instructions in this case did not constitute a legal error.
The Crown did not rely on L.F.’s out-of-court statements … for the truth of the contents of those statements. It was no part of the Crown’s case that the jury should believe L.F. because she had repeated the allegations several times to several different people. It was the defence that introduced the vast majority of L.F.’s prior statements in an effort to show the many inconsistencies among those statements. The defence argued that L.F.’s prior inconsistent statements rendered her trial testimony unreliable. The Crown responded to that argument with the claim that the [inconsistencies] were insignificant when placed in the context of the entirety of L.F.’s statements and the central allegations made by her.
The defence, as it was entitled to do, vigorously attacked L.F.’s credibility and reliability using her prior statements. The Crown, as it was equally entitled to do, attempted to rebut those attacks with the contention that the statements were not inconsistent on material matters. The trial judge’s instructions on the prior statements reflected the manner in which those statements had been placed before the jury by the parties. Considered in that light, the trial judge’s instructions, even absent the alleged non-directions, adequately prepared the jury to properly assess L.F.’s evidence. Counsel’s failure to object at trial supports my conclusion that the trial judge’s instructions properly captured the significance of the prior statements to the case put before the jury by the parties. [Citations omitted.]
[64] In this case, there is little likelihood that the jury would have used the evidence of the statement to the boyfriend as proof of what happened. No detail was given and this was just one of many conflicting prior statements.
[65] Here the complainant was fully cross-examined on all of her prior statements and the jury was well equipped to assess the reliability and credibility of her evidence.
[66] An instruction highlighting the subtle distinction between a bar prohibiting supporting a witness’ credibility by relying on prior consistent statements as corroboration, and using that evidence to rehabilitate her credibility and to counter attacks on her credibility because of prior inconsistent statements would not have had any impact in this case.
E. Sentence
[67] The appellant also challenges the six year sentence imposed by the trial judge. He says this is a crushing sentence and unduly harsh for a youthful first offender. At trial the Crown sought a sentence of eight to ten years incarceration. Defence submitted that a conditional sentence, or at most three years jail would be appropriate. As observed by Feldman J. A. in R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, at para. 44, five or six years will generally be the minimum for “prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust”.
(1) The Sentence Imposed was Fit
[68] The appellant was convicted of sexually assaulting the complainant over a four-year period, when she was between 11 and 15 years old. The sentence imposed is at the lower end of the range identified as appropriate for convictions of this nature. Furthermore, although the appellant was acquitted of having abused a position of trust, there were many aggravating factors:
• The complainant was 11 years old when he began to have intercourse with her.
• He was 25 years old, old enough to know better.
• He impregnated her when she was 13, and kept the pregnancy secret from her family.
• The sexual assaults were repeated over a four-year period.
• The appellant filmed the activity and threatened to show the recording to others.
• He told her she would lose her family if she told anyone about the sexual assaults, and threatened to harm her if she revealed the abuse.
• The complainant was devastated by the assaults. She attempted suicide.
[69] The sentence imposed was fit.
F. Disposition
[70] In the result, for these reasons, I would dismiss the appeal from conviction, grant leave to appeal sentence, but also dismiss the appeal from sentence.
Released: October 29, 2015
(JL) “G. Pardu J.A.”
“I agree John Laskin J.A.”
“I agree C.W. Hourigan J.A.”