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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Warren, 2016 ONCA 104

DATE: 20160205

DOCKET: C52923

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geoffrey Warren

Appellant

Kristin Bailey, for the appellant

Jessica Smith Joy, for the respondent

Heard: October 28, 2015

On appeal from the conviction entered on February 23, 2009 by Justice Raymond Harris of the Superior Court of Justice, sitting with a jury.

L.B. Roberts J.A.:

Overview

[1] The appellant, Geoffrey Warren, appeals from his conviction by a jury of the offence of sexual interference for acts involving the complainant contrary to s. 151(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. His conviction for sexual assault of the complainant was stayed in accordance with R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[2] The appellant advances two grounds of appeal:

(1) The trial judge erred in failing to give a limiting instruction on the complainant’s prior consistent statements.

(2) The jury charge was unbalanced and favoured the Crown’s position.

[3] As I would allow the appeal on the first ground, it is unnecessary to deal with the second ground.

The complainant’s evidence

[4] The complainant was almost 13 years old when she testified at trial. She said that the appellant touched her “private parts” with his “private parts” on more than 10 occasions when she was 6 or 7 years old, during the times that the appellant babysat her with her younger sister at the appellant’s apartment.

[5] The complainant was thoroughly cross-examined by defence counsel on the major inconsistencies present in her prior statements to her grandmother and the police, and in her evidence at the preliminary inquiry and at trial. Those inconsistencies included the perpetrator, nature and severity of the assaults.

[6] In the re-examination of the complainant, the examination of her grandmother, and in closing argument, the Crown referenced the complainant’s prior consistent statements of her complaint to rehabilitate the complainant’s credibility and reliability.

Analysis

Positions of the parties

[7] The appellant concedes that the complainant’s prior consistent statements were admissible for the purpose of showing the narrative and context of the complainant’s complaints. No issue is taken with the Crown’s use of the statements.

[8] The focus of the appeal is on the absence of a limiting instruction. The appellant submits that the trial judge erred in failing to warn the jury that the complainant’s prior consistent statements could not be used for their truth, to prove that sexual contact had occurred.

[9] The Crown argues that a warning was unnecessary, as it was the defence that elicited most of the prior statements. Defence counsel did not request the limiting instruction at trial.

Standard of review

[10] To succeed on this appeal, the appellant must establish that a jury instruction concerning the use that the jury could make of the complainant’s prior consistent statements should have been given and that its omission amounted to legal error. See R. v. Sarrazin, 2010 ONCA 577, 259 C.C.C. (3d) 293, at para. 65, aff’d 2011 SCC 54, [2011] 3 S.C.R. 505.

Use of prior consistent statements

[11] Prior consistent statements are presumptively inadmissible because they lack probative value and constitute hearsay when adduced for the truth of their contents. They are potentially dangerous because they may mislead the trier of fact into thinking that, because a person said the same thing on more than one occasion, it is more likely to be true. See R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 36-37; R. v. Divitaris (2004), 2004 CanLII 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28.

[12] Where prior consistent statements are admitted to rebut recent fabrication or defence allegations of inconsistency, or as narrative, a warning against substantive use of the statements is usually required. This instruction should indicate that the prior complaints are not admitted for the truth of their contents and that the jury is to consider only the fact that the complainants were made to assist them in understanding what occurred and why: Dinardo, at para. 37; R. v. B. (C.), 2008 ONCA 486, 237 O.A.C. 387, at para. 48; R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476.

[13] There are some exceptions to the general rule. A limiting instruction is not always necessary and may be confusing where “the defence was relying on the prior statement to support its theory,” “where it was 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”: R. v. Demetrius (2003), 2003 CanLII 16618 (ON CA), 179 C.C.C. (3d) 26 (Ont. C.A.), at paras. 21-22 [citations omitted].

Whether a limiting instruction was necessary in this case

[14] The complainant’s prior statements played a major role at trial. They went to the core question of the reliability and credibility of the complainant’s evidence. As a result, a limiting instruction was necessary to avoid the real risk that the jury would rely on the complainant’s prior statements for an impermissible purpose. Its omission was an error of law.

[15] There were major inconsistencies in the complainant’s various versions of relevant events that were contained in her statements to her grandmother and police, and in her testimony at the preliminary inquiry and at trial. In particular, between the complainant’s first disclosure at age 11 to her grandmother and the police, and her evidence at trial, the nature and severity of the alleged assaults dramatically lessened from allegations of the appellant’s attempted intercourse with the complainant to his touching her over her clothes. Further, the complainant’s statement that “they” (meaning the appellant and his friend, James) touched her narrowed to her trial evidence that only the appellant touched her.

[16] The complainant’s prior inconsistent statements were introduced by defence counsel during her cross-examination of the complainant in order to impeach her credibility and reliability as a witness. Defence counsel challenged the complainant’s credibility and reliability by comprehensively cross-examining her on the inconsistencies in her statements. The complainant was not asked to and did not adopt as true her prior statements. Rather, she acknowledged that they were incorrect. In her closing submissions to the jury, defence counsel described the complainant’s inconsistencies in considerable detail.

[17] During his re-examination of the complainant, his examination in chief of her grandmother, and in closing argument, Crown counsel sought to counteract the damaging effects of the complainant’s cross-examination by referring to her prior consistent complaints. Crown counsel referenced the complainant’s prior consistent statements of her complaint as part of the narrative and logical framework of her disclosure of the allegations of sexual abuse. In this way, Crown counsel asserted the consistency of the complainant’s core evidence about the assaults, and contended that her prior inconsistent statements were not inconsistent on material matters.

[18] Relying heavily on Demetrius, the Crown argues that a limiting jury instruction was not necessary in this case. Defence counsel introduced and relied on the complainant’s prior inconsistent statements during the complainant’s cross-examination and in closing submissions to the jury. That defence strategy opened the door to the Crown’s referring to the complainant’s prior consistent statements. In those circumstances, a limiting instruction would have confused the jury.

[19] I do not accept these submissions.

[20] Demetrius is distinguishable from the present case. The complainant made a statement that identified Mr. Demetrius as the person who shot him. As part of his defence, Mr. Demetrius relied on the contents of the complainant’s prior consistent statement, in order to show that the complainant had come up with a quick lie. The complainant’s prior consistent statement was essential to the defence theory of the case that he was falsely implicating Mr. Demetrius to exculpate himself from liability for a robbery. The defence strategy made the truth of the complainant’s prior consistent statement relevant and the Crown was entitled to rely on it for that purpose.

[21] That is not the present case. Here, defence counsel only referenced the complainant’s prior statements for the permissible goal of impeaching the complainant’s credibility and reliability because of the inconsistencies in her various statements and her evidence at trial, and not for the truth of the statements’ contents.

[22] The present case is akin to the circumstances of R. v. Lajoie (1993), 64 O.A.C. 213, leave to appeal refused, [1993] S.C.C.A. No. 188. In that case, the trial judge had allowed the Crown to admit evidence of the complainant’s prior complaint of sexual assault. The prior complaint was admitted, not as a prior consistent statement to rebut an allegation of recent fabrication, but as evidence of the fact that the complainant had complained. This use was necessary to counter the defence, which was an “all-out attack on credibility”: para. 11.

[23] This court held in Lajoie, at para. 12, that the trial judge erred in failing to instruct the jury as to the limited evidentiary value of the complainant’s prior complaint, notwithstanding that no such instruction was requested, for the following reasons:

[L]eft as it was the jury may well have used the evidence for the very purpose they were not to use it, a form of self-corroboration. The jury should have been told that the evidence could not be used as proof of the truth of the facts stated, but was evidence of the fact that she had complained and so, depending on the view the jury took of that evidence, conduct consistent with her story. There was non-direction amounting to misdirection.

[24] Those reasons apply equally to the present case. Looking at the charge as a whole and considering it in the context of the closing submissions, there were unresolved gaps that gave rise to the risk that the jury would use the complainant’s prior statements for the truth of their contents to bolster the complainant’s credibility.

[25] The Crown maintains that the failure of defence counsel to object to the charge indicates that the omission of the instruction was insignificant and could not have affected the outcome of the trial.

[26] The failure of trial counsel to object to the charge is a factor in appellate review, for the following reasons as explained by Bastarache J. for the majority of the court in Daley, at para. 58:

While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. See Jacquard, at para. 38: “In my opinion, defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.”

[27] However, counsel’s failure to object is not determinative because the trial judge is ultimately responsible for the charge to the jury. If, as in the present case, the charge contains legal error, counsel’s failure to object to the erroneous charge does not change the nature or effect of the legal error: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97, leave to appeal refused, [2010] S.C.C.A. No. 263. As a result, defence counsel’s failure to object in the case at bar was immaterial in light of the legal error in the jury charge.

[28] The failure of the trial judge in this case to give a limiting instruction left the jury without the analytical framework necessary to understand how they were to use the complainant’s prior consistent statements. In particular, without this instruction, Crown counsel’s reference to the complainant’s prior consistent statements in his closing submissions was effectively the last word on the subject.

[29] In his closing submissions, Crown counsel referred to the complainant’s consistency in reporting her allegations over the years. This was done to counter the defence suggestion that the complainant’s evidence was inconsistent and therefore incredible and unreliable. To make the point, Crown counsel emphasized the number of times that the complainant had “the guts” to repeat her version of events to her grandmother and to the police, at the preliminary inquiry, and at trial. In particular, Crown counsel highlighted the complainant’s consistent repetition that “every time it’s Geoff and James and those two girls and the details … [s]he testified that it happened on the couch and on the floor, repeatedly, her privates being rubbed by Geoff”.

[30] However, without a limiting instruction, the jury could easily have misunderstood the significance of the complainant’s prior consistent complaints, namely, that the complainant’s repetition of events meant that her statements were true. This would contradict the premise for the rule that excludes prior consistent statements - that repetition does not make the statement more likely to be true: Divitaris, at para. 34.

[31] The lack of a limiting instruction was particularly harmful in the present case because the complainant’s prior statements served to shore up the complainant’s trial evidence about the assaults that was otherwise questionable.

[32] The complainant testified that the appellant molested her when she was sitting on the couch or on the floor, with her legs out straight and slightly parted. When she was sitting on the couch, she said that her feet would not be over the side of the couch or touch the floor, although her back was not up against the couch.

[33] The complainant said that when she was sitting on the couch or on the floor, the appellant would crouch down, his knees bent, his bottom not touching the floor, and his face level with hers. From that position, the appellant would touch the complainant’s private parts with what she thought were the appellant’s private parts. The complainant did not see the appellant’s penis; she did not even look at the appellant, because she said that she was watching her sister being molested by the appellant’s friend, James.

[34] The complainant confirmed that the appellant did not otherwise touch her. When defence counsel questioned her about her prior inconsistent statement to her grandmother about the appellant touching the complainant’s bottom, the complainant clarified that if she had said it to her grandmother, she would have meant that she was being spanked and that there was nothing sexual about it.

[35] As defence counsel submitted to the jury in her closing address, the complainant’s trial version of the assaults was almost physically impossible.

[36] Without a limiting instruction, there was a real risk that the jury assessment would use the complainant’s prior consistent statements as evidence of the sexual contact, that is to say, for their truth.

[37] In the circumstances of this case, the absence of a limiting instruction in the jury charge was an error of law.

Disposition

[38] Accordingly, the appeal is allowed, the appellant’s conviction and sentence are set aside, and a new trial is ordered.

Released: February 5, 2016

“L.B. Roberts J.A.”

“I agree John Laskin J.A.”

“I agree G. Pardu J.A.”