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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Boone, 2016 ONCA 227

DATE: 20160329

DOCKET: C59417

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Paul Boone

Appellant

Jonathan Shime and Benjamin Elzinga Cheng, for the appellant

Stacey Young, for the respondent

Heard: February 24, 2016

On appeal from the convictions entered on December 19, 2012 by Justice D.J. Gordon of the Superior Court of Justice, sitting with a jury.

Sharpe J.A.:

[1] The appellant engaged in unprotected anal intercourse without disclosing the fact that he was HIV-positive. He appeals his conviction on two counts of aggravated sexual assault.

[2] The appellant had anal intercourse with one of the complainants and later he and Bowland, his co-accused, also HIV-positive, met the two male complainants for a sexual encounter. The group of four engaged in unprotected sex, including anal penetration. Neither the appellant nor Bowland disclosed their HIV-positive status to the complainants, but the appellant later made disclosure to one of the complainants. The complainants immediately sought medical attention. Neither contracted HIV.

[3] The appellant raises several grounds of appeal. The principal ground is that the trial judge erred by failing to instruct the jury that if it found that the complainants were reckless or prepared to assume the risk of engaging in unprotected sex with a partner whose status is unknown, they must acquit.

[4] For the following reasons, I would dismiss the appeal.

A. FACTS

[5] The central facts are not in dispute and may be outlined briefly.

[6] The appellant and one of the complainants, C.S., had sex together in September 2009. At that time, the appellant had not tested positive for HIV and he told C.S. that he was “clean”. However, the appellant tested positive for HIV in October 2009 and there was no question that he was HIV-positive when he encountered C.S. again in March 2010.

[7] On March 28, 2010, the appellant engaged in unprotected anal intercourse with C.S. in a motel room. The two agreed to meet later that day with Bowland, the appellant’s friend, and K.D., the second complainant, at K.D.’s apartment. They engaged in a variety of sexual activities, including unprotected anal penetration.

[8] Shortly after that encounter, the appellant sent C.S. a text message stating that both he and the co-accused were HIV-positive. C.S. informed K.D. The complainants expressed their shock and concern and both went to the hospital that same night. They were given anti-viral treatment and took the drugs for four weeks. Neither man tested positive for HIV.

[9] Neither the appellant nor Bowland testified at trial but they conceded that they had engaged in anal intercourse with the complainants, that they did not disclose their HIV-positive status, and that neither complainant knew that the appellant and the co-accused were HIV-positive.

[10] The complainants testified that they would not have engaged in sexual activity with the appellant and Bowland had they known that both were HIV-positive. The appellant and Bowland attacked the credibility of the complainants and urged the jury not to accept their assertion that they would not have engaged in sexual activity with the appellant and Bowland had they known that they were HIV-positive.

[11] The appellant and his co-accused sought and obtained, over the objection of the Crown, a pre-trial ruling pursuant to s. 276 of the Criminal Code, R.S.C. 1985, c. C-46,permitting them to cross-examine both complainants on certain prior sexual conduct: see R. v. Boone and Bowland, 2012 ONSC 441. C.S. and K.D. were cross-examined and admitted to regularly having unprotected sex with each other, and to previously engaging in unprotected group sex with other men whose HIV status they did not know. There was also evidence that C.S. and K.D. were very aware of the risks posed by having sex with an HIV-positive partner and that they had themselves regularly tested for the disease.

[12] The appellant argued at trial that, as the complainants were careless in their sexual lives and prepared to have sex with other men whose HIV statuses were unknown, doubt was cast on the credibility of their assertion that they would not have had sex with him, had they known of his HIV-positive status. The appellant also relied on the fact that C.S. himself had failed to disclose that he had syphilis before they had sex, indicating a disregard for the risks of engaging in sex with others who might be infected and knowledge that partners may be dishonest about their sexual health.

B. ISSUES

[13] The appellant raises the following four issues:

(1) Did the trial judge err by failing to charge the jury that, if it found a possibility that the complainants were reckless or prepared to assume the risks of unprotected sex with someone whose HIV status is unknown, the jury must acquit?

(2) Did the trial judge err in failing to give a Vetrovec warning in relation to the two complainants?

(3) Did the trial judge make a “Miller error”?

(4) Did the trial judge err by failing to warn the jury that the appellant’s text messages should not be used as evidence of bad character to punish the appellant?

[14] The respondent Crown submits that if any error is found on the above grounds of appeal, this court should apply the curative proviso. The respondent also submits that the trial judge erred by granting the appellant’s s. 276 application which permitted the defence to adduce evidence of the complainants’ prior sexual conduct in order to assess whether or not the complainants would have consented to having unprotected sexual intercourse had they known that the appellant was HIV-positive.

C. ANALYSIS

(1) Did the trial judge err by failing to charge the jury that, if it found a possibility that the complainants were reckless or prepared to assume the risks of unprotected sex with someone whose HIV status is unknown, the jury must acquit?

[15] In R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, the Supreme Court of Canada held that the failure to disclose a condition that poses a significant risk of serious bodily harm amounts to fraud that vitiates consent to sex. Writing for the majority, Cory J. explained, at para. 127:

Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV‑positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV‑positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent.

[16] Cory J. added, at para. 130:

In situations such as that presented in this case it must be emphasized that the Crown will still be required to prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the accused if she had been advised that he was HIV-positive. As unlikely as that may appear it remains a real possibility. In the words of other decisions it remains a live issue.

[17] R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, affirmed the Cuerrier test and explained the element of significant risk of serious bodily harm in cases involving an HIV-positive accused with a low viral load.

[18] In the case at bar, the Crown tendered expert evidence as to the risk of HIV transmission through unprotected receptive anal intercourse. No issue was raised in this case as to the sufficiency of the appellant’s viral load in relation to that risk.

[19] As the appellant conceded that he had engaged in unprotected anal intercourse with the complainants, that he was HIV-positive at the time, and that he had not disclosed his HIV-positive status, the central issue at trial was whether the Crown had proved beyond a reasonable doubt that the complainants would have refused to engage in unprotected sex with him if they had been advised that he was HIV-positive. On that issue that the appellant’s trial counsel adduced evidence of the complainants’ past sexual behaviour to support an assertion that they were generally reckless and/or prepared to assume the risks of unprotected sex.

(a) The proposed jury instruction

[20] On appeal, the appellant argues that the trial judge erred by failing to instruct the jury properly on this issue. In his oral submission, Mr. Shime provided us with the following instruction that he submits the trial judge ought to have given:

If these factors [engaging in sex without knowing or asking about the health status of partners] lead you to believe that C.S. and K.D. may have been reckless or prepared to assume the risks that result from unprotected sex with someone whose status is unknown, then you must acquit as that means there exists a doubt for you to know that C.S. and K.D. would not have consented had they known.

[21] In my view, this submission must be rejected.

[22] The law imposed a positive duty on the appellant to disclose his HIV-positive status to the complainants before engaging in sex with them. The issue for the jury to decide was whether the Crown had proved beyond a reasonable doubt that the complainants would not have consented had they known of the appellant’s HIV-positive status, not whether they were prepared to risk having unprotected sex with someone whose HIV status they did not know. An instruction along the lines proposed by the appellant would be inconsistent with the law as laid down in Cuerrier and Mabior as it wouldeffectively remove the accused’s duty to disclose if the accused was having sex with a partner who had engaged in risky sex in the past. This would transform the accused’s duty to disclose into a duty on the complainant to inquire. It would, as the Crown contends, effectively limit criminal liability to situations where the complainant inquired about an accused’s HIV status but the accused was deceptive.

[23] Nor am I convinced that any alleged carelessness or recklessness of the complainants was relevant to the issue that confronted the jury, namely, whether C.S. would have consented to have sex with the appellant had he known of his status. As I have stated, it is one thing to be careless or reckless about whether a risk exists and quite another to assume a known risk.

(b) Section 276

[24] This brings me to the s. 276 issue. It was not open to the Crown to appeal the trial judge’s s. 276 order since the appellant was convicted but, as I have noted, the Crown invited us to find that he erred in making that order. I would not ordinarily be inclined to accept such an invitation but I find it appropriate to comment on the s. 276 order for two reasons. First and foremost, the appellant’s submission as to the adequacy of the jury charge directly raises the relevance of the complainants’ prior sexual conduct, an issue that is also engaged under s. 276. Second, there are conflicting trial level decisions on the s. 276 issue and it is appropriate for this court to attempt to clarify the law.

[25] Section 276(1) of the Criminal Code provides that evidence of the complainant’s prior sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant: (a) is more likely to have consented; or (b) is less worthy of belief. These prohibited inferences are known as the “twin myths”.

[26] If the proposed evidence does not run afoul of this rule, an application judge can authorize admission of the evidence pursuant to s. 276(2) provided three conditions are met: it relates to specific instances of sexual activity; it is relevant to an issue at trial; and it has significant probative value not substantially outweighed by the danger of prejudice to the proper administration of justice, having regard to the factors outlined in s. 276(3).

(c) The s. 276 pre-trial ruling

[27] In his s. 276 ruling, the trial judge concluded that the proposed evidence suggested a “pattern of casual sexual acts” and was relevant to the issue of fraud vitiating consent. He found that the proposed evidence was capable of raising a reasonable doubt as to whether the complainants would not have consented to unprotected sex with the appellant had they known the appellant was HIV-positive, an essential element of the offence.

[28] He summarized his reasons for granting the defence application as follows:

[61] Neither the gay lifestyle nor the sexual activity of the complainants are of interest in this trial. Rather, the focus is on risk associated with their conduct. The defence refers to this as a “non-sexual aspect”. I agree. It is very specific.

[62] Given the evidentiary burden of the prosecution on the essential elements of the charges, the evidence the defence seeks to introduce is highly relevant and probative. The pattern of sexual encounters with strangers, as previously discussed, addresses the issues in this case and specifically the credibility of the complainants.

[63] The jury is entitled and, in my view, must hear this evidence so that a just verdict is rendered. As stated, an appropriate limiting instruction will focus the jury on the use of the evidence and, thereby, prevent the twin myths arising.

[64] Prejudice to the administration of justice would occur if this evidence was excluded.

[29] With respect to the factors listed for consideration in s. 276(3), the trial judge found as follows, at para. 46:

a) the evidence pertains to the issues in dispute and is necessary so that the jury may render a just verdict;

b) the evidence specifically addresses risk and, as identified in the caselaw, is not concerned with the sexual component of the activity;

c) it follows, then, that the jury can be directed to focus on the issues and purpose of the evidence so that there is no concern as to the twin myths, bias or discriminatory belief;

d) similarly, sentiments as to prejudice, sympathy or hostility can be avoided;

e) the complainants testified at some length as to intimate sexual acts and communicate in like manner, hence the concern as to their personal dignity and privacy is not an overriding concern;

f) similarly, the complainants’ right to personal security and the full protection and benefit of the law is not impacted.

[30] The respondent concedes that the appellant was entitled to a s. 276 order in relation to an inconsistent statement by K.D. as to his past sexual practice, but argues that otherwise, the order should not have been made.

(d) The s. 276 jurisprudence in HIV non-disclosure cases

[31] Like the trial judge in this instance, some other Ontario trial judges have found that a complainant’s history of unprotected sexual intercourse in the past is relevant to the issue of whether the complainant would knowingly consent to sexual intercourse if advised of this sexual partner’s HIV positive status. In R. v. Pottelberg (14 October 2010), London, 10628 (Ont. S.C.), Bryant J. came to a similar conclusion about the relevance of prior sexual conduct, as did Wong J. in R. v. Poisson (23 June 2015), Toronto (Ont. C.J.).

[32] In R. v. H.(J.), 2012 ONCJ 708, at para. 32 (a case dealing with non-disclosure of herpes simplex type 2), Green J. concluded that the defence proposal to call evidence of the complainant’s sexual hygiene behaviour and practices with others was not for the purpose of showing that the complainant was more likely to have consented to the sexual act underlying the charges and that it was probative of the issue whether the complainant would have consented had she been aware of her partner’s positive viral status:

Read literally, s. 276(1)(a) only renders evidence of the complainant’s prior sexual conduct inadmissible if it is being advanced to “support an inference that, by reason of the sexual nature of that activity, the complainant” is more likely to have consented to the sexual act at issue before the court. [Emphasis in original.]

[33] However, three Superior Court judges have come to a different conclusion on this issue. In R. v. Clarke, 2013 ONSC 3232, another case in which the accused did not disclose his HIV-positive status, the complainant and the accused were involved in a sexual relationship for over two years. The Crown did not dispute the admissibility of evidence that the complainant continued to have sex with the accused after learning that they were both HIV-positive. The defence proposed to call additional evidence to establish a “pattern of behaviour” of risk acceptance on the part of the complainant. This included various incidents of engaging in unprotected sex with a number of individuals whose HIV status was unknown to the complainant. Skarica J. refused to make a s. 276 order on the ground that it did not follow that a person prepared to accept some form of unknown risk is also prepared to accept risk that is virtually certain to cause a life-threatening disease.

[34] In R. v. Ralph, 2014 ONSC 1072, the accused was charged with aggravated sexual assault for HIV non-disclosure. Defence counsel sought to question the complainants about their sexual partners before and during their relationship with the accused, including the nature of the sexual activity, the use of condoms, if any, and the HIV status of those partners to counter the complainants’ claims that they would not have consented had they known the accused’s HIV-positive status. Spies J. considered the conflicting decisions in Boone and Bowland and Clarke. She preferred the reasoning in Clarke, concluding at para. 24, that apart from one question, questions about risky sexual behaviour were not relevant. She analogized the situation to people who skydive despite the risk of injury or death. If told that their parachute would malfunction and likely cause death, a person would not likely accept that risk. The fact that he or she had skydived before would not be relevant. (An inmate appeal from conviction and sentence on other grounds was dismissed by this court: R. v. Ralph (11 February 2016), Kingston, 59024 (C.A.)).

[35] The trial judge did, however, allow the following question, which in her view, did not involve the prohibited inferences:

“Before you knew you were HIV positive, had you ever engaged in sexual intercourse; either vaginal or anal or oral sex with someone that you knew or believed to be HIV positive?”

[36] In R. v. W.H., 2015 ONSC 3087, also an aggravated sexual assault charge for HIV non-disclosure, Morgan J. followed Clarke and Ralph and refused a s. 276 application to introduce evidence of prior sexual conduct indicating a tolerance for risk. At para. 5, the trial judge referred to Spies J.’s comments in Ralph, at para. 11, citing R. v. Darrach (1998), 1998 CanLII 1648 (ON CA), 122 C.C.C. (3d) 225 (Ont. C.A.), at para. 35:

“The rationale for subsection 276(1) is to protect against prohibited inferences, namely the 'twin myths' that a sexually promiscuous woman is less worthy of belief, and that a sexually permissive woman is more likely to have consented to the sexual activity that forms the basis of the allegation because of her sexual history.[”]

Morgan J. continued:

Putting it like this highlights how close the defense’s proposed line of questioning is to the prohibited line of questioning. If we substitute the phrase “risk-taking” for “promiscuous”, we get to precisely the point the defense hopes to make: that a sexually risk-taking woman is more likely to have consented to the (high risk) sexual activity that forms the basis of the allegation because of her sexual history.

(e) Evidence of prior sexual conduct is generally not relevant to the issue whether a complainant would have knowingly consented to unprotected sex with an HIV-positive accused

[37] As Morgan J. put it in W.H., at para. 10, the “twin myths” are prohibited not only as a matter of social policy but also as a matter of “false logic”. There is a material difference between accepting an unknown risk and accepting a known risk. Even if the complainants were reckless in their sexual behaviour, whether in the past or at the time of their sexual encounter with the appellant, this has no bearing on the issue whether they would have consented had they known of the appellant’s HIV-positive status.

[38] A decision to engage in sexual activity is fraught with many risks among which the most serious is the risk of contracting a life-threatening condition. The risk that an individual is prepared to assume is highly dependent upon the circumstances. In my view, evidence of a complainant’s general disposition to expose himself to an unknown risk (i.e. by having casual unprotected sex) is simply not probative of whether or not a complainant would be willing to accept a serious known risk.

[39] Moreover, the nature of the risk of unprotected sex with an HIV positive partner goes beyond the risk of bodily harm. An infected person must assume the legal obligation to disclose HIV status to all sexual partners and thereby faces consequent restrictions on future relationships.

[40] As Cuerrier and Mabior hold, by imposing on one sexual partner a duty to disclose a condition that poses a serious risk to another, the law aims to vindicate and to protect the autonomy and dignity of the latter. The modern law of sexual assault “respects each sexual partner as an autonomous, equal and free person”: Mabior, at para. 45. An individual is, as a matter of law, entitled to know that a significant risk of serious bodily harm exists so that he or she can take that risk into account before deciding whether to engage in sexual activity. Past carelessness or recklessness about an unknown but possible risk has no bearing upon whether an individual is to be believed when he asserts that he would not have assumed a known risk.

[41] In both Clarke and Ralph, it was suggested that the risk posed by unprotected sex with an HIV-positive partner was a virtual certainty. The evidence in this case placed the risk well below certain infection. However, I find the basic reasoning in those cases and W.H. to be sound.

[42] There may be cases where evidence that a complainant previously consented to unprotected sex knowing his or her partner to be HIV-positive may be sufficiently relevant to the determination of whether the complainant consented to the same risk with the accused. In my view, however, such cases will be rare. The trial judge must be satisfied that admission of the evidence would not invite the prohibited twin myth inferences. There are many factors, some rational and others not, that influence an individual’s decision to give or to withhold consent to sexual relations in any particular situation. It does not automatically follow from a decision to consent to unprotected sex with one partner known to be HIV-positive that consent to unprotected sex with a different partner would be given in different circumstances.

[43] The appellant argues that an exploration of the complainants’ carelessness or recklessness was the only way he could raise the defence that they would have consented had they known of his HIV-positive status.

[44] Although it may be difficult for an accused to raise a reasonable doubt on this issue, that difficulty flows from the law. As Cory J. stated in Cuerrier when explaining this element of the offence, it is “unlikely” but possible that consent would have been given had the risk been known. There are many cases, among them sexual assault where consent is at issue, in which the accused is faced with incriminating evidence from a witness that is difficult to challenge. Such difficulties do not justify changing, bending or distorting the law to make it easier for the accused to raise a reasonable doubt. Nor do they justify admitting evidence that is not logically probative of the issue. Moreover, as this case demonstrates, even if it is difficult for an accused to directly challenge a complainant’s statement “had I known I would not have consented”, it is always open to an accused to challenge the complainant’s credibility in other ways by exposing prior inconsistent statements and general lack of veracity. In this case, the defence mounted a significant attack on credibility by using C.S.’s failure to disclose his syphilis diagnosis, the inconsistent statements related to the criminal record and group sexual activity.

[45] In this case, the pertinent s. 276(3) factors favoured excluding the evidence. The evidence had little if any relevance to the issue before the jury and “the interests of justice, including the right of the accused to make a full answer and defence” did not favour admitting it: s. 276(3)(a). There was no “reasonable prospect that the evidence [would] assist in arriving at a just determination in the case”: s. 276(3)(c). Allowing the defence to probe the complainants’ prior sexual behaviour would discourage the reporting of sexual assaults and would “potential[ly cause] prejudice to the complainant’s personal dignity and right of privacy”: ss. 276(3)(b) and (f).

[46] I conclude, accordingly, that the trial judge erred in making a s. 276 order in the circumstances of this case. However, that error inured to the benefit of the appellant and the trial judge did not err by failing to instruct the jury in the manner proposed by the appellant.

(2) Did the trial judge err by failing to give a Vetrovec warning in relation to the two complainants?

[47] At trial, the appellant and Bowland mounted a concerted attack on the credibility of the complainants based on prior inconsistent statements and collusion. C.S. had lied at the preliminary inquiry about his criminal record. K.D. had lied at the preliminary inquiry about his involvement in group sex. They had destroyed relevant text messages and they admitted discussing their evidence before and during the trial.

[48] The appellant submits that, as C.S. and K.D. were essential witnesses for the Crown, the trial judge was required to give a full Vetrovec warning, cautioning the jury that it would be dangerous to convict unless their version of events was supported by other evidence: see Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

[49] I disagree.

[50] As the Crown points out, despite the problems with their evidence, the complainants did not bear the hallmarks of classic Vetrovec witnesses. They were not jailhouse informants, accomplices, nor did they stand to benefit in any way from their testimony. The frailties of their evidence were apparent. Counsel addressed those frailties in their closing submissions as did the trial judge in his charge to the jury. The trial judge also specifically instructed the jury on C.S.’s criminal record, the prior inconsistent statements of both complainants, and collusion. He highlighted the need to analyze their evidence carefully.

[51] A trial judge has a discretion whether to give Vetrovec warning and as to the nature and extent of the warning. The exercise of that discretion is entitled to deference and should be given wide latitude on appeal: R. v. Van Every, 2016 ONCA 87, at para. 73; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 614; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 1-2 and 24. In my view, the trial judge did not exceed the limits of that discretion in the circumstances of this case.

[52] A Vetrovec caution is not made mandatory simply because the complainants’ evidence was essential to the Crown’s case: R. v. A.W.B., 2015 ONCA 185, 322 C.C.C. (3d) 130, at para. 42; R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 74, leave to appeal refused, [2014] S.C.C.A. No. 193.

[53] In his charge, the trial judge canvassed with the jury the basis for the attack on the credibility of the complainants. The trial judge held a pre-charge conference to afford counsel the opportunity to comment on his proposed charge. The appellant’s trial counsel did not object to the manner in which the trial judge proposed to deal with the evidence of the complainants nor did he request a Vetrovecwarning. Although not fatal on its own, the absence of any objection leads to an inference that the language employed by the trial judge was appropriate from the perspective of the accused: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 49-50; Brooks, at paras. 18-19; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at p. 339.

(3) Did the trial judge make a “Miller error”?

[54] The appellant submits that in three separate passages in his jury charge, the trial judge instructed the jury that it should base its verdict on evidence it accepted. This, says the appellant, confined the jury’s attention to the evidence it accepted and precluded it from considering all the evidence as a whole in its deliberation, contrary to the direction in R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 5 O.R. (3d) 678 (C.A.).

[55] All three impugned passages were taken directly from Watt’s Manual of Criminal Justice Instructions, 2d ed. (Toronto: Carswell, 2015). The appellant’s trial counsel raised no objection to them. I do not agree that they amounted to a direction to examine the evidence in two separate stages or to consider the evidence in a piecemeal fashion. When explaining reasonable doubt, the trial judge properly instructed the jury to consider “all the evidence” and, in the W.D. portion of the charge, that the appellant was entitled to an acquittal if evidence the jury did not accept left it with a reasonable doubt. When the charge is read as a whole, there is no danger that the impugned comments could have skewed the jury’s full and proper consideration of all the evidence when concluding that the Crown had proved its case beyond a reasonable doubt.

(4) Did the trial judge err by failing to warn the jury that the appellant’s text messages should not be used as evidence of bad character to punish the appellant?

[56] The Crown tendered a series of text messages from the appellant including one in which he expressed a desire to infect others with HIV. As the appellant had conceded that he was HIV-positive and that he had not disclosed his status, his trial counsel submitted to the jury that this evidence was irrelevant. The Crown argued that the text messages showed the appellant’s dishonest purpose. The trial judge did not refer to the text messages in his charge.

[57] The appellant submits that the trial judge erred by failing to warn the jury that the text messages were of no assistance on the critical issue and that the jury should not use the text messages as evidence of bad character to punish the appellant.

[58] In my view, it would have been preferable had the trial judge given the jury a limiting instruction on the use it could make of the text messages.

[59] However, no such instruction to the jury was requested by the appellant’s trial counsel and I am not persuaded that, in the context of this case, the trial judge’s failure to give a specific cautionary instruction on the text messages amounted to an error of law that affected the fairness of this trial.

D. Disposition

[60] For these reasons, I would dismiss the appeal.

Released: March 29, 2016

“Robert J. Sharpe J.A.”

“I agree M.L. Benotto J.A.”

“I agree Grant Huscroft J.A.”