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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. B.D., 2016 ONCA 673

DATE: 20160913

DOCKET: C53917

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.D.

Appellant

Daniel C. Santoro, for the appellant

Greg Skerkowski, for the respondent

Heard: May 3, 2016

On appeal from the convictions entered by Justice Gordon Thomson of the Superior Court of Justice, sitting with a jury, on May 20, 2010.

Cronk J.A.:

I. Overview

[1] The primary issues on this appeal concern the propriety of the admission in a domestic assault case of extensive evidence of extrinsic misconduct by the accused and the adequacy of the trial judge’s instructions to the jury on the permissible use of that evidence.

[2] On May 20, 2010, the appellant, B.D., was convicted by a jury of one count of assault and four counts of sexual assault against his former wife, Y.D. The trial judge passed away before the appellant was sentenced. On March 12, 2012, the sentencing judge sentenced the appellant to two and one-half years in jail.

[3] The appellant appeals against his convictions. He argues that the trial judge erred: i) by admitting irrelevant and, in some cases, demonstrably false evidence of extrinsic misconduct by the appellant; ii) by failing to provide a limiting instruction to the jury regarding the permissible use of the extrinsic misconduct evidence and telling the jurors that they could use their common sense when assessing that evidence; and iii) by failing to respond appropriately when he learned that the appellant, by reason of his hearing difficulties, allegedly had not heard a substantial part of what transpired at trial.

[4] In support of these grounds, the appellant seeks leave to file as fresh evidence on appeal: i) documents concerning the outcome of a Children’s Aid Society (“CAS”) investigation of Y.D.’s allegations that the appellant had abused his children; ii) affidavits from defence counsel at trial and an expert audiologist regarding the appellant’s hearing impairment; iii) police reports detailing investigations into Y.D.’s allegations that the appellant breached his bail conditions; and iv) evidence regarding Y.D.’s appearance at the time of one of the alleged sexual assaults.

[5] For the reasons that follow, I would allow the appeal. In my view, certain of the extrinsic misconduct evidence was improperly admitted at trial, necessitating an appropriate limiting instruction to the jury to remedy the prejudice arising from its admission. Because the trial judge gave no limiting instruction, there is a significant risk in this case that the jury misused the extrinsic misconduct evidence, to the prejudice of the defence. A new trial is therefore required.

II. Background

(1) The Parties’ Relationship

[6] The appellant is a retired school principal with no prior criminal record. He met Y.D., who was then living in Russia, through an advertisement she had placed in a catalogue. In April 1998, after the parties corresponded with each other for some time, the appellant proposed marriage. Y.D. accepted, and the appellant sponsored her application to immigrate to Canada from Russia as his spouse.

[7] Following their marriage, Y.D. and the appellant had two children together: a daughter, R.D., born in 1999, and a son, C.D., born in 2001. Over time, the couple’s relationship became volatile and acrimonious, especially in connection with the manner of raising their children.

(2) The Incidents Charged

[8] The Crown’s case against the appellant rested primarily on Y.D.’s evidence. In her trial testimony, Y.D. described the appellant as an angry and controlling husband. She claimed that he refused to let her take English-language classes; that he did not allow her to purchase a vehicle or go anywhere; that he controlled the parties’ finances, allowing her only minimal funds for monthly expenses; and that he became emotionally, psychologically and physically abusive toward her and their children.

[9] The charges against the appellant were based on five, specific incidents of alleged abuse of Y.D. by the appellant that spanned the period from late October 2006 to mid-February 2007. Y.D. said that all five incidents took place in the couple’s bedroom during the early morning hours.

[10] According to Y.D., the first incident occurred around 3:00 a.m. on a day in late October 2006. It did not involve sexual abuse but, rather, an assault simpliciter. Y.D. testified that, on this occasion, the appellant woke her up, sat on her chest, pushed her face forcefully with his right hand, and pinned her hands with his knees.

[11] The other incidents included sexual violence ranging from squeezing Y.D.’s breasts to digitally penetrating her vagina and forced intercourse. Y.D. said that, during the last incident in mid-February 2007, the appellant slapped her in the face with an open hand, punched her thigh, and pulled her nipple with such force that she spontaneously urinated in response to the pain.

[12] The Crown tendered two pieces of confirmatory evidence. First, it tendered photographs of the injuries allegedly inflicted by the appellant on Y.D. on two occasions. The appellant maintained that the photographs in question actually reflected injuries sustained by Y.D. in a bicycle accident.

[13] The Crown also called T.B., who employed Y.D. as a housekeeper. T.B. testified that she observed marks or bruises on Y.D. on several occasions. Although she had some difficulty remembering the specific dates of her observations, T.B. testified that she saw a bruise on Y.D.’s face in late October 2006, and a bruise on Y.D.’s leg in February or March 2007.

[14] T.B.’s observations corroborated the complainant’s evidence. Y.D. stated that she had a bruise on her face after the first assault in October 2006 and bruises on her legs after the last assault in February 2007. However, T.B.’s testimony was inconsistent with her prior statement to the police, in which the only specific month she remembered seeing bruises was May 2007. Y.D. did not complain of any assault in May 2007.

[15] The appellant testified. He denied all the allegations made against him.

(3) The Extrinsic Misconduct Evidence

[16] The appellant argues that extensive, irrelevant evidence of his alleged discreditable conduct was wrongly admitted at trial, to his prejudice. He says that this evidence took two main forms.

[17] First, the appellant submits that, throughout her testimony, Y.D. made multiple gratuitous and inflammatory allegations of abuse by the appellant that were irrelevant to the offences charged. In some instances, he says, these allegations were also demonstrably false. For example, according to the appellant, Y.D. falsely claimed that the appellant had been sexually, verbally and physically abusive toward the couple’s children on numerous occasions. Further, she alleged that he had engaged in abusive conduct toward her on occasions unrelated to the charges before the court. On Y.D.’s evidence, the latter conduct included the uttering of death threats, additional assaults, name calling and psychologically controlling behaviour.

[18] Second, Y.D.’s personal diary was filed as an exhibit at trial, without any editing, and Y.D. testified about its contents. Y.D.’s diary entries were replete with allegations of inappropriate and, in some instances, criminal behaviour by the appellant that were largely unrelated to the predicate offences. In particular, some entries suggested that the appellant had engaged in sexually inappropriate behaviour toward the children, that he had assaulted and threatened them, that the children were fearful of him, and that Y.D. was afraid to leave the children alone with him.

[19] The appellant submits that the prejudice arising from the improper admission of this extrinsic misconduct evidence was exacerbated in two ways.

[20] First, Crown counsel at trial put many of Y.D.’s allegations against the appellant to him in cross-examination, including her claim that the appellant had exposed himself and went to the bathroom in front of his young daughter.

[21] Second, the trial judge failed to provide a limiting instruction concerning the jury’s use of the extrinsic misconduct evidence. Instead, when summarizing the trial evidence for the jury, the trial judge repeated much of Y.D.’s testimony concerning her irrelevant allegations and misdirected the jury on the permissible use of that testimony.

(4) The Jury Charge

[22] In his charge, the trial judge provided the jury with a detailed review of the evidence. His review included mention of many of Y.D.’s allegations.

[23] Further, the trial judge was not asked to provide, and did not provide, a limiting instruction to the jury on the permissible use of any of the evidence of extrinsic misconduct by the appellant. Rather, in a series of mid-trial instructions and in his charge, the trial judge told the jurors that they were required to consider the evidence as a whole, that all the evidence put before the jury was relevant and admissible, that the jurors were entitled “to come to common sense conclusions” and that, in considering the case, they should “use the same common sense that you use everyday in deciding whether people know what they are talking about and whether they are telling the truth”.

[24] As I will discuss later in these reasons, these instructions, standing alone, are unobjectionable. The difficulty in this case is that the trial judge did not distinguish in his instructions between properly admitted and irrelevant and inadmissible evidence of the appellant’s extrinsic misconduct, and he provided no limiting instruction regarding any of the extrinsic misconduct evidence. In the absence of a cautionary instruction concerning the inadmissible extrinsic misconduct evidence, the instructions provided by the trial judge had the effect of inviting the jury to consider and rely upon irrelevant and inadmissible evidence.

(5) The Hearing Impairment Issue

[25] At trial, it emerged that the appellant has a hearing impairment. During the evidence of the first witness, defence counsel informed the trial judge that the appellant could not hear the witness and that he had “a partial hearing problem”.

[26] As the Crown’s case proceeded, the appellant indicated several times that he could not hear what was being said in court. On each occasion, steps were taken to address the appellant’s hearing difficulties, either at the instance of the trial judge or on request by the defence. For example, at the start of a witness’ evidence, the appellant was permitted to move physically closer to the witness box. Witnesses were also repeatedly asked to slow down, speak louder, or repeat their testimony. At no point did the appellant or his trial counsel indicate that these accommodations were insufficient or that the appellant could still not hear what was transpiring in the courtroom.

[27] On the sixth day of trial, during the appellant’s cross-examination by Crown counsel, a document authored by the appellant was put to him. The appellant had not seen the document for nine years and the Crown had only provided a copy of it to defence counsel the previous day. In the circumstances, a brief adjournment was called and the appellant was permitted to discuss the document with his counsel.

[28] When court resumed after the adjournment, defence counsel told the trial judge that he had “a troublesome dilemma”: his client had informed him that he was “missing 50 percent of what is being said in the trial” because of his hearing difficulties.

[29] The trial judge rejected defence counsel’s concern. He pointed out that it was being raised at a time when the appellant was under heated cross-examination; that it had been open to the appellant throughout the trial to indicate that he could not hear what was being said in the proceeding; that, in fact, the appellant had done so several times; and that, each time the appellant raised the issue of his hearing difficulties, “it has been corrected.” The trial judge also said that it was “too late” for a defence argument on this issue to “hold a lot of water or to be persuasive or to convince me to do anything about it.”

III. Issues

[30] There are three issues on appeal. The appellant argues that the trial judge erred:

(1) by admitting irrelevant and, in some cases, demonstrably false evidence of extrinsic misconduct by the appellant;

(2) by failing to provide a limiting instruction to the jury regarding the permissible use of the extrinsic misconduct evidence and, further, by misdirecting the jurors regarding its proper use; and

(3) in his response to the defence concern that the appellant allegedly had not heard a substantial part of the trial proceeding: i) by failing to declare a mistrial; and ii) by ruling that it was “too late” for further accommodation concerning the appellant’s hearing impairment.

IV. Analysis

(1) Improper Admission of Extrinsic Misconduct Evidence

[31] The dangers associated with the admission in a criminal trial of evidence of extrinsic misconduct by the accused are well-established. As this court indicated in R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 52:

The inherent prejudicial effect of evidence of extrinsic misconduct can infect a jury’s deliberative process in three main ways:

i. the jury may assume, from its acceptance of the evidence of extrinsic misconduct, that an accused is a “bad person”, thus likely to be guilty of the offences charged;

ii. the jury may tend to punish the accused for the extrinsic misconduct by finding him or her guilty of the offences charged; and

iii. the jury may become confused by the evidence of extrinsic misconduct, their attention deflected from the main purpose of the trial, the offences charged, and substitute their conclusion on the extrinsic misconduct for their verdict on the indictment they are trying. [Citations omitted.]

[32] However, as J.A.T. also explains, at para. 51, not all evidence of an accused’s extrinsic misconduct is inadmissible:

Evidence of an accused’s extrinsic misconduct that shows only that she or he is the type of person likely to have committed an offence with which she or he is charged is inadmissible … On the other hand, evidence that tends to show from extrinsic misconduct that an accused is a person of bad character, but that is also relevant and material, falls outside the general exclusionary rule, provided its probative value exceeds its prejudicial effect. [Citations omitted.]

[33] Thus, for example, evidence of extrinsic misconduct may be admitted as part of the narrative to provide context for the events at issue or to establish motive or animus, or to explain why alleged abuse occurred and went unreported due to a pattern of violent control by the accused over others: J.A.T., at para. 54. In all instances, however, the evidence in question “must be relevant to some material issue, other than propensity, and be more probative of that issue than prejudicial through impermissible propensity reasoning”: J.A.T., at para. 54.

[34] In R. v. L.B. (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35, at p. 43 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 54, this court set out a four-part test for the admissibility of extrinsic misconduct evidence regarding an accused:

(1) Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?

(2) If so, is the proposed evidence relevant and material?

(3) If relevant and material, is the proposed evidence discreditable to the accused?

(4) If discreditable, does its probative value outweigh its prejudicial effect?

[35] In this case, I did not understand the Crown to seriously contest on appeal that evidence of extrinsic misconduct by the appellant was admitted at trial. Instead, the Crown stressed that this evidence was not adduced by the Crown but, rather, was either proffered spontaneously by Y.D. in response to questioning, without objection by the defence, or that it was actually led by the defence on cross-examination of Y.D.

[36] In particular, the Crown points out that Y.D.’s diary was admitted at trial in unedited form, at the request of the defence, and that much of the extrinsic misconduct evidence was put to direct use by the defence in an effort to demonstrate that Y.D. was a poor witness who made inflammatory and unfounded allegations, and consequently that she was not worthy of belief.

[37] It is unnecessary, in my view, to review the evidence of the appellant’s extrinsic misconduct in detail to determine this ground of appeal. I am satisfied that irrelevant evidence of extrinsic misconduct by the appellant was improperly admitted at this trial. Most concerning, in my opinion, is the evidence of the appellant’s alleged abusive conduct toward his young children. Two parts of the evidence at trial will suffice to make this point: the testimony of Y.D. and the appellant, and the evidence of Y.D.’s diary entries concerning the appellant’s alleged child abuse.

(a) Testimony of Y.D. and the Appellant

[38] In her examination-in-chief, Y.D. described the appellant as very controlling of when their young daughter could shower and where she could undress for her bath. Y.D. then described the alleged sexual assault that she said happened in mid-February 2007. In doing so, she stated:

A. I remember it was a very long assault. Um, while he was sitting on me he was saying many different things. He was saying to me that he is going to go to church where he prefers to go and he is going to take children for lunch.

A. He’s saying I’m going to take children for lunch whether you want it or not. It’s a good idea, right, to take kids for lunch home so they can have lunch at home and then go back to school. But what was happening while he was doing that he would expose himself in the bathroom to the children and make my daughter watch him while he was doing his business in the bathroom. I was witness one time that happen that’s how I knew. And then my daughter told me mummy but daddy makes us … [Emphasis added.]

[39] At that point in Y.D.’s testimony, the trial judge interjected to forestall Y.D. from recounting what her daughter had told her, saying “Okay, no, no, no.” For his part, Crown counsel said “All right. Don’t – let’s not go down there at this point.” Y.D. then responded: “So I was trying to protect children not to go with dad for lunch and stay at school.”

[40] Had Y.D.’s evidence of the appellant exposing himself to their daughter ended there, her testimony on the issue might be viewed as merely an isolated and unprompted disparagement of the appellant. However, Y.D.’s claim that the appellant had acted inappropriately toward his children became a recurring theme throughout her testimony.

[41] For example, on cross-examination of Y.D., defence counsel asked her about the frequency of the couple’s son (C.D.) seeking to sleep in his parents’ bed. The following exchange took place:

Q. And it happened often enough that [the appellant] was upset with this?

A. Really much so and [C.D.] was afraid of that too. He knew that dad would get very angry. At that time also [the appellant] was very aggressive towards our son. He was punished for everything and anything. He was blamed for lots of things. I wish he had been more like, you know maybe he was looking for reassurance from me you know. He cried a lot too. He did. And whatever it would be for punish for [C.D.] that mean he goes downstairs and take off his clothes.

Q. You’ve just made two statements and I’ve asked you no question.

A. Okay.

Q. I realize that you seem compelled.

The Court: Well she’s entitled to expand on any question that she wants. She’s not limited to that so long as it is relevant and admissible. If she needs to explain further she’s entitled to do that.

[Defence Counsel]: I had received answers.

[42] The combined effect of these parts of Y.D.’s evidence was to suggest that the appellant had acted improperly and in a sexually suggestive fashion toward the couple’s young daughter and inappropriately and aggressively toward their young son. This evidence, in my opinion, was irrelevant to the charges before the court and highly prejudicial to the defence. The clear inference arising from this evidence was that the appellant was a man who did not hesitate to act inappropriately, in both a sexualized and aggressive fashion, toward his children, rendering it more likely that he would act improperly toward his wife, as she alleged.

[43] The trial judge provided no mid-trial caution to the jury regarding its consideration of this evidence. Nor, as I will explain, did he do so in his final instructions. To the contrary, by his comments on the second exchange, set out above, the trial judge suggested that Y.D.’s testimony on this issue was relevant and admissible notwithstanding that it was unresponsive to any question asked and furthered the depiction of the appellant as a person who abused his children.

[44] Y.D.’s allegations of abuse by the appellant of his children did not end with her testimony. On cross-examination, Crown counsel put to the appellant Y.D.’s allegation that he went to the washroom in front of his daughter:

A. I don’t think it’s any secret that there were issues that we were not on the same page and I was trying my best to take the issues to professional health people.

Q. Now sir one of those issues is that [Y.D.] didn’t like you going to the washroom in front of your daughter, right?

A. That never happened.

Q. That never happened?

A. No. The [CAS] extensively investigated that very untrue allegation, interviewed the children both in French and English with the Officer Toutant from the [local police department]. After the intensive investigation they sent [Y.D.] a copy that they had no protection concerns, their file was closed and three years later she’s still making the same allegation. It never happened, ever.

Q. You don’t agree then that you told Fatima DeValentin [a CAS worker] that you would not go to the washroom in front of your children anymore.

A. Fatima DeValentin said to me do you promise you won’t go to the washroom anymore in front of your children. Now, how do you answer that question?

[45] The trial judge then interrupted, prolonging the exchange on this issue and suggesting, in front of the jury, that it “may be important”:

The Court: Now this may be important. Let’s just redo that again. What’s your question?

Q. I asked him if he told Fatima DeValentin, a C.A.S. worker, that he would not go to the washroom in front of his daughter.

A. And I’m telling you exactly what happened.

Q. All right.

A. Her question to me was will you promise that you won’t go, now my answer to her was, I will promise to never do it again but I never did it in the first place. [Emphasis added.]

[46] The evidence of the appellant’s alleged abuse of his children, including the claim that he exposed himself to his daughter while going to the washroom, was irrelevant and immaterial to the offences charged and, hence, inadmissible. There was no suggestion, for example, that any of the incidents of alleged child abuse prompted arguments between Y.D. and the appellant, leading to the appellant’s abuse of Y.D. Nor was there any suggestion by Y.D. that the appellant’s abusive conduct toward their children otherwise formed part of the circumstances of his abuse of her.

[47] To the extent that this evidence could be said to have had any relevance, its probative worth was clearly eclipsed by its prejudicial effect. The concern is that, absent a corrective warning from the trial judge, the jury could have misused this evidence to conclude that the accused, as a person who was prone to mistreat his children, was the type of person who would also mistreat his wife. The evidence of the appellant’s alleged child abuse, in my view, triggered each of the three dangers associated with the admission of evidence of extrinsic misconduct identified in J.A.T., set out above.

(b) Y.D.’s Diary Entries

[48] As I have said, Y.D.’s entire diary was admitted as an exhibit at trial at the request of the defence and the defence sought to exploit its contents on cross-examination of Y.D. in an attempt to cast her as an unbelievable and unreliable witness. Neither Crown counsel nor defence counsel at trial requested that the diary be admitted only in edited form.

[49] Thus, defence counsel at trial made tactical decisions to introduce the diary and to attempt to use Y.D.’s diary entries to the benefit of the defence. This is an important factor to consider in assessing the appellant’s challenge on appeal to the diary’s admissibility. In the circumstances, the appellant’s complaint before this court regarding the admission of the diary may be viewed as opportunistic and must be regarded with skepticism: R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38, at para. 14.

[50] However, this is not a complete answer to the risk of trial unfairness arising from the potential prejudicial effect on the jury of the evidence regarding the contents of the diary. The diary entries included multiple allegations of improper behaviour by the appellant that were unrelated to the predicate offences. These included entries suggesting that the appellant had assaulted and threatened his children and engaged in sexually inappropriate conduct toward them. For example, Y.D.’s diary entries indicated that the appellant went to the bathroom in front of his daughter and made her watch, walked in front of his daughter wearing only his underwear, hit his son causing him to cry and become fearful, threatened his children with violence, and struck his daughter on her hands. All these entries formed part of the evidence admitted at trial, without any cautionary mid-trial or final instruction from the trial judge.

[51] Before this court, Crown counsel concedes, properly in my view, that only parts of the diary were relevant to the offences charged and that others were not. It was incumbent on the trial judge to ensure that only relevant and material evidence was placed before the jury and that the probative value of such evidence outweighed its prejudicial effect. The necessary inquiry as to the relevance and probative worth of the diary entries was not undertaken in this case.

[52] To summarize on this issue, the evidence adduced at trial concerning the appellant’s alleged abuse of his children was irrelevant and highly prejudicial. It had no bearing on the charges against the appellant or on the narrative of events leading up to the assaults alleged. In these circumstances, because it was not probative of the appellant’s culpability on the offences charged, it was inadmissible. I therefore turn to the question whether the prejudice to the defence arising from the improper admission of this evidence was remedied by the trial judge’s instructions.

(2) Trial Judge’s Instructions

[53] Where inadmissible evidence, like inadmissible evidence of extrinsic misconduct by an accused, is put before the jury in a criminal case, the trial judge should provide an appropriate instruction to the jury “to ensure that the [improperly admitted] evidence is not misused by the jury in its decision-making” (citations omitted): J.A.T., at para. 50. See also R. v. Chamot, 2012 ONCA 903, 296 C.C.C. (3d) 91, at paras. 62-63; and R. v. Samuels, 2013 ONCA 551, 310 O.A.C. 175, at paras. 45-46. The requisite instruction should clearly caution the jury that the inadmissible evidence cannot be used by it in its deliberations for any purpose.

[54] The appellant submits that a limiting instruction regarding the extrinsic misconduct evidence in this case was required, given the inflammatory and highly prejudicial nature of certain of that evidence. He further submits that the trial judge’s failure to so instruct the jury was reversible error and that the prejudice arising from the trial judge’s non-direction was compounded by the trial judge’s misdirection to the jury regarding its assessment of the evidence.

[55] While I do not agree with the appellant’s assertion that the trial judge positively misdirected the jury, I agree with the remainder of his submissions on this issue. As I have already explained, some, although not all, of the extrinsic misconduct evidence admitted at trial should not have been received. And the jury did not receive any instructions about the impropriety of relying upon evidence that should not have been admitted. To the contrary, because the instructions provided failed to distinguish between the use the jury could make of the evidence that was properly admitted and the evidence that should not have been admitted, the jury was left without any meaningful instructions on this key issue. I note, in particular, the following.

[56] First, near the outset of trial, the trial judge provided the jury with a mid-trial instruction regarding the use of exhibits admitted at trial. He told the jury that all exhibits would be available to it in the jury room and that the jury could “do whatever you wish with it and take it into consideration. And again, like any other piece of evidence you can accept all, part or none of it. It’s your call completely on those kinds of issues.”

[57] This instruction, standing alone, was unobjectionable. However, it was incorrect regarding the improperly admitted parts of Y.D.’s diary. And the trial judge provided no correcting instruction in connection with Y.D.’s diary when it was subsequently admitted as an exhibit at trial.

[58] Later in the trial, when Y.D. was under cross-examination, the trial judge provided another mid-trial instruction to the jury in connection with notes authored by women’s shelter employees regarding an application Y.D. made for subsidized housing. On this occasion, he told the jury:

Now, everybody has been working hard in the last period of time to get things straightened out so that again what you hear is admissible in law. It isn’t something that inappropriately pops up and is information that you should not have, which in some circumstance results in an abortive trial and we don’t want that to happen under any circumstances. So everybody is being, is being very careful in ensuring that what you get is appropriately admissible in this case. Okay. And the bottom line again is that I’ve got to be satisfied that at the end of the day a full fair and just trial has been held to the best of my ability to manage that. Okay. Thank you. [Emphasis added.]

[59] The trial judge returned to this theme in a third mid-trial instruction, provided while Y.D. was still under cross-examination. When explaining counsels’ right to make objections to the jury, the trial judge said:

[I]n a trial that I run my job basically is to ensure that whatever you hear is appropriate, proper, lawful, admissible, relevant, all of those kinds of little things that are in there.

[60] These mid-trial instructions left the jury with the impression that all the evidence it heard was relevant and admissible. For the reasons already given, this was inaccurate with respect to certain of the evidence of extrinsic misconduct by the appellant.

[61] In fairness to the trial judge, I note that the defence did not request a limiting mid-trial instruction concerning any of the extrinsic misconduct evidence or that Y.D. be instructed by the trial judge to confine her answers to the questions asked. Further, as I have already said, Y.D.’s statements were unsolicited by counsel. However, the trial judge had an independent duty to provide a limiting instruction when necessary – a duty not vitiated by lack of comment or objection from counsel: J.A.T., at para. 50; and R. v. F.F.B., 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at pp. 735-36, per Iacobucci J.

[62] Unfortunately, the trial judge’s final instructions did not correct or qualify his mid-trial instructions. Instead, the trial judge told the jury in his charge that it must consider the evidence as a whole and that “[e]verything that was said, everything that was looked at, everything that was produced, everything that was read it’s all part of the evidentiary package.” He also said: “All the other evidence that’s in there [other than the evidence of the actual assault allegations and the appellant’s denial of them] is evidence you need to consider when it comes to dealing with credibility and assessing the evidence.”

[63] Thus, not only did the charge fail to provide any guidance to the jury on how to assess the improperly admitted evidence of extrinsic misconduct – in particular, the improperly admitted evidence of the appellant’s alleged abuse of his children – the jury was told that this evidence, like the rest of the evidence at trial, was part of the “evidentiary package” to be considered and could be relied on by it in reaching its verdicts.

[64] Moreover, rather than attenuating the prejudicial impact of the inadmissible extrinsic misconduct evidence with an appropriate limiting instruction, the trial judge highlighted it in his charge when summarizing the evidence for the jury. Referring to inadmissible extrinsic misconduct evidence in a final instruction increases the risk of its misuse by a jury: R. v. J.A. (1996), 1996 CanLII 1201 (ON CA), 112 C.C.C. (3d) 528, at p. 537 (Ont. C.A.).

[65] For example, when summarizing the evidence, the trial judge repeated Y.D.’s testimony that the appellant had “historically exposed himself to his daughter while he was in the washroom doing his business”, that she would “do all to protect [her children]” and would not allow them to be “in danger if she could foresee it in anyway”, and that the appellant was aggressive with the couple’s son and “punished him for all kinds of things”.

[66] Later in his charge, the trial judge summarized the evidence of the CAS investigation of Y.D.’s claim that the appellant had abused his children, a claim vigorously denied by the appellant at trial. In doing so, the trial judge indicated, correctly, that the appellant had been confronted at trial with an alleged admission made by him to a CAS worker. The trial judge then said:

With respect to going to the bathroom in front of the kids, this is again in cross-examination. He said the [CAS] and police investigated, spoke to the kids and in the end had no protection concerns. It never happened ever he said. However he was confronted with a statement made by someone by the name of Fatima and I didn’t get the last name wherein he agreed she asked if he would promise not to go to the washroom in front of the kids and he agreed he would not and she noted that he said he would never do that again. In his testimony he qualified those words by saying that he said them but he never did that in the first place. [Emphasis added.]

[67] There are several difficulties with this passage from the charge. First, and most obviously, it repeats part of the evidence that I have concluded should not have been admitted at trial. Second, the appellant’s statement to the CAS worker referenced by the trial judge was not proven at trial. On a fair reading of his evidence, the appellant either denied making the statement in question at all or, at the least, qualified the nature of the statement made. And the CAS worker did not give evidence at trial. Yet, the jury was told, in effect, that the statement had been made, thus suggesting that the appellant had made a prior inconsistent statement.

[68] I appreciate that a trial judge’s charge must be read as a whole. The problem in this case is that, read in its entirety and against the backdrop of the trial judge’s mid-trial instructions, outlined above, the charge failed to provide the jury with any assistance as to how to properly assess the inadmissible evidence of extrinsic misconduct by the appellant. Indeed, it failed to recognize that such inadmissible evidence had been received. And, to the extent that he did instruct the jury on how to assess the evidence, the trial judge’s instructions suggested that the jury was to treat all the evidence at trial as relevant and admissible and consider it in its decision-making. As a result, the trial judge’s instructions provided no shield against the jury’s impermissible use of the improperly admitted evidence of extrinsic misconduct.

[69] In these circumstances, I am unable to conclude that the jury’s verdicts were based exclusively on relevant and admissible evidence. In my view, the fairness of this trial was compromised by the likelihood that the jury, in accordance with the trial judge’s instructions, both considered and relied on improperly admitted evidence in its decision-making. On this ground alone, the appeal must be allowed. In light of this conclusion, it is unnecessary to consider the appellant’s application for leave to file proposed fresh evidence on appeal relating to the evidence admitted at trial.

(3) Hearing Impairment Issue

[70] The appellant’s final ground of appeal concerns his hearing impairment. The appellant argues that, once the trial judge was alerted to his hearing difficulties, it was incumbent on the trial judge to conduct a voir dire, to make further inquiries of the appellant, to invite further submissions from counsel to explore the issue in greater detail, or to declare a mistrial. The appellant says that the trial judge’s failure to take any of these steps fatally compromised trial fairness.

[71] In support of this argument, the appellant seeks to rely on affidavit evidence from his trial counsel and his long-standing audiologist to establish the scope and severity of his hearing impairment and his alleged inability to fully hear what transpired at trial.

[72] I have already concluded that the trial judge erred by admitting certain evidence of extrinsic misconduct by the appellant and by failing to remedy the prejudice to the defence arising from its admission in his instructions to the jury. These errors, in my opinion, require a new trial. I therefore do not reach the appellant’s final ground of appeal and his associated application for leave to file fresh evidence on this issue.

V. Disposition

[73] I would allow the appeal and direct a new trial.

Released:

“DW” “E.A. Cronk J.A.”

“SEP 13 2016” “I agree R.G. Juriansz J.A.”

“I agree David Watt J.A.”