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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

6. (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

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

8. (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. Dawson, 2016 ONCA 880

DATE: 20161123

DOCKET: C61037

Feldman, Simmons, Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth David Dawson

Appellant

Kenneth Dawson, acting in person

Erika Chozik, appearing as duty counsel

Leslie Paine, for the respondent Crown

Heard: April 7, 2016

On appeal from the convictions entered on July 29, 2015 and the sentence imposed on September 14, 2015 by Justice Alan C. R. Whitten of the Superior Court of Justice, sitting with a jury.

Feldman J.A.:

[1] The appellant was convicted by a jury of sexual interference and sexual assault of two very young girls each around five years old, for whom he occasionally babysat. The two convictions for sexual assault were stayed by the trial judge applying R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 and the appellant was sentenced to two years’ imprisonment in respect of each count of sexual interference to be served consecutively. He appeals his convictions and seeks leave to appeal sentence.

Background

[2] The first complainant, A.S., lived with her mother across the hall from the appellant and his common law spouse in an apartment building. The mother was in her early 20’s and had a longstanding relationship with the appellant’s spouse, who was like a mother to her. A.S. referred to the appellant and his spouse as grandpa and grandma. A.S. spent a lot of time at the appellant’s apartment from 2012 to 2013 before her mother moved. The mother identified two occasions when A.S. was alone with the appellant, one in August 2012 and one in January 2013.

[3] A.S. gave a videotaped statement to the police in April 2013 when she was five years old. That statement was played at the trial and she was asked questions about it and about her allegations. The trial took place when she was seven years old.

[4] She testified consistently that the appellant touched her “pee-pee”, which she pointed to as her private parts, with his finger and with his “pee-pee”. She also said he put his pee-pee into her pee-pee but that she had her clothes on when this happened. She also drew a picture while giving her video statement to the police, which was adopted by her at trial, and which shows a male with a large penis lying with another person. She identified the people in the picture as the appellant and herself. She testified that she had not seen anyone else’s pee-pee other than grandpa’s.

[5] Her mother testified that although there had been a number of adult males that the child knew, the only one she referred to as “grandpa” was the appellant. A.S. drew a picture of her assailant for the Children’s Aid Society (CAS), which showed him with hair on his head. The picture she drew of the assailant during the police interview did not include hair, but A.S. told the officer that she had not finished drawing the hair. While the appellant does not have hair on his head, A.S. explained that she likes drawing hair on people’s heads.

[6] The other complainant, B.A., was a few months younger than A.S. B.A.’s mother testified that she was a friend of the appellant’s spouse. Her mother left B.A. alone with the appellant on two occasions, once in February 2013 at the apartment and the second time in April 2013, at the appellant’s new address. B.A. called the appellant Uncle David and did not refer to anyone else by that name.

[7] B.A. also gave a videotaped statement to the police in April 2013. She was four years old at the time and seven at the trial. In the video statement, she talked about playing the baby game with Uncle David where they took turns being naked like a baby, and where he got milk on her which came from where he went pee. She said she played the baby game both at his apartment and at his new house. She also mentioned that there were snakes in the room and trophies and referred to eating them.

[8] The videotaped statement was played at the trial. B.A. said she remembered giving it, that she was telling the policeman the truth and that she remembered the things she talked about concerning Uncle David and the baby game. However, on cross-examination at trial, she was unable to give any testimony about the events. She remembered Uncle David and his spouse but not playing the baby game, although she did remember Uncle David feeding her bottles of milk. She did not remember the snakes or trophies.

[9] The appellant did not testify at the trial. The jury convicted the appellant of sexual interference and sexual assault of both young girls.

Issues on the Conviction Appeal

[10] Duty counsel, on behalf of the appellant, raised three issues on the conviction appeal: 1) unreasonable verdict; 2) prejudicial interruption of the defence closing submissions to the jury by the trial judge; and 3) insufficient caution on the use of the evidence of one complainant to corroborate the other and on the risk of propensity reasoning.

Analysis

1) Unreasonable Verdict

[11] A court on appeal will set aside a verdict of guilt as unreasonable where it finds that there was no evidence on which a properly instructed jury could make a finding of guilt. R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381.

[12] The appellant points to four aspects of the evidence that he argues make the verdicts unreasonable. The first three relate to the first complainant A.S. The effect of the appellant’s argument is that there was evidence that should have raised a reasonable doubt. The three areas of evidence he relies on are: 1) the picture the complainant drew for the CAS of the man who touched her had hair on his head, while the appellant does not; 2) A.S. said that the assailant put his pee-pee into her but there was no evidence of any injury; and 3) the evidence of the mother was that A.S. had been left alone with six separate men, giving all of them the opportunity to assault her.

[13] The appellant is correct that any of these aspects of the evidence, either taken together or separately, could have left the jury with a reasonable doubt about whether the assault or sexual interference happened at all or that he was the perpetrator. Defence counsel at trial explored all of this evidence on cross-examination and relied on it in his closing submissions to the jury. The trial judge also referred to it in his statement of the position of the defence.

[14] However, there was an explanation in the evidence for each of these alleged inconsistencies. The complainant testified that she liked drawing pictures of people with hair. Although she at some points said that the appellant had put his pee-pee into hers, as she was consistent that she had her clothes on, no injury would be expected. She was also definite in identifying the appellant and not the other men as the perpetrator. The jury was entitled to accept the evidence of A.S. as to what occurred and that it was the appellant who did it. This court is also entitled to consider that the appellant did not testify to dispute the complainant’s evidence when considering whether the verdict is unreasonable. R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 478 and [2015] S.C.C.A. No. 498, at para. 164. There is no basis to consider the verdict to be unreasonable in respect of A.S.

[15] In relation to the second complainant, B.A., duty counsel submits that because B.A. could not remember the events at trial, the conviction was based solely on the evidence she gave in her police statement at the time. However, in that evidence the complainant included fanciful references to snakes and trophies, showing that she confused fact with fantasy.

[16] I would not give effect to this submission. Although B.A. could no longer remember the assault by the time of the trial, she did remember the police interview and confirmed that what she said was true. She also remembered Uncle David. Although she did not remember any snakes and trophies, the jury was alerted to this issue by defence counsel and it was referred to by the trial judge in his charge.

2) Trial Judge’s Interruption of Defence Counsel’s Closing Address to the Jury

[17] During his closing address, defence counsel showed flash cards to the jury illustrating the points he was making and was proceeding to tape up one of the cards that showed a doctor examining a child, when the trial judge indicated that he had made his point. Counsel then asked to speak to the court in the absence of the jury. Counsel’s point was that there was no physical or medical evidence to substantiate the complainant’s claims and no DNA evidence. The trial judge was concerned that this flash card was misleading and unnecessary. Following their discussion, the trial judge ruled that counsel could use the flash cards but that they would not go before the jury in the jury room. The trial judge did not denigrate counsel in front of the jury.

[18] I am satisfied that nothing the trial judge did caused any prejudice to the appellant. Defence counsel did not seek to pre-clear with the trial judge his use of flash cards that were not evidence at the trial. The trial judge was entitled to control the process in his court and to ensure that the jury was given only properly admitted material. Following the discussion in the absence of the jury, defence counsel continued directly with his address on the same subject, sticking to the evidence on the issue of any injury to the complainant A.S. I would not give effect to this ground of appeal.

3) Failure to Give a Propensity Warning

[19] The appellant was charged with two counts against each of the two complainants in one indictment. The evidence presented was not put forward as similar fact evidence. Therefore, the jury had to be clearly instructed that they had to keep separate the evidence that related to each count and each complainant. The trial judge gave the jury clear instructions on this point in a number of ways throughout the charge.

[20] I will set out two examples:

1. [A]s you know there are four charges. Each count, one, two, three, four…. It’s essentially an offence within itself. It’s like having been charged with four offences. Each of these counts is a separate charge. You must make a separate decision and give a separate verdict for each charge. Your verdicts may, but do not have to be the same on each charge. You must make your decision on each charge only on the basis of the evidence that relates to that particular charge and the legal principles that I tell you to apply to your decision on that charge. Now, obviously, because there’s a repetition of the nature of the offence, I will, you will take those instructions, but you will carry them over to the other count and apply it individually. You must not use the evidence that relates only to one charge in making your decision on any other charge. [Emphasis added.]

2. As I indicated, Mr. Dawson is presumed innocent of each charge. You must consider each charge separately and return a separate verdict for each charge based only on the evidence and the legal principles that apply to it. For each charge your verdict will depend on your assessment of the evidence and your application of the legal principles that relate to that charge. Your verdict sheet, as I’ve told you, will show you the verdicts available on each charge and I will tell you about that. So an analogy that I would give is that each charge is like an island. You’ve got to stay on the island, on a particular island until you resolve what constitutes the evidence in that particular case and come to your conclusion, whether it be beyond a reasonable doubt as to guilt or innocence. You don’t take anything with you to the next island. You’ve got to start afresh and consider the evidence and the law in so far as that particular issue is concerned. [Emphasis added.]

[21] The appellant submits that in addition to these instructions regarding the separation of the evidence applicable to each count, the trial judge was also required to instruct the jury that they could not use the evidence concerning the appellant and one of the complainants as bad character or propensity evidence in their consideration of the evidence in relation to the other complainant.

[22] The seminal case from this court on this requirement is R. v. B.M. (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1. In that case, the appellant was charged with multiple offences including rape, indecent assault, invitation to sexual touching, incest, as well as weapons offences, against multiple complainants of all ages and both sexes, as well as bestiality with two dogs. The trial judge did not adequately instruct the jury to deal with each count separately or as to the use they could make of the evidence on the different counts. On appeal, this court held, at p. 14, that the charge to the jury was inadequate in two respects:

First, when evidence of one count is not admissible as similar fact evidence on the other counts, jurors must be instructed to consider each charge separately and not to use evidence relating to one count as evidence on any of the other counts.

Second, [R. v. Rarru, 1996 CanLII 195 (SCC), [1996] 2 S.C.R. 165] requires the trial judge to give the jury a proper limiting instruction regardless of whether evidence of other counts or of uncharged misconduct is admissible as similar fact evidence…. It was essential that the jury be instructed that it was not to rely on the evidence of other counts or other uncharged misconduct as proof that the accused is the sort of person who would commit the offence or offences charged.

[23] In that case, the court also held that the bestiality counts should have been severed because including them with the sexual misconduct counts served only to invite the jury to engage in forbidden propensity reasoning, especially where no limiting instruction was given. A new trial was therefore ordered.

[24] These requirements have been reiterated in a number of cases of this court since B.M. In those cases, unlike in this case, the trial judge had failed to give both of the charges discussed in B.M., that is to keep the evidence of each count separate and not to engage in propensity reasoning. See for example: R. v. K.P., 2009 ONCA 408, 252 O.A.C. 10 and R. v. F.J.H., 2000 CanLII 5700 (ON CA), 145 C.C.C. (3d) 169.

[25] Cromwell J.A. (as he then was) explained in the Nova Scotia Court of Appeal decision in R. v. T.C.F., 2006 NSCA 42, 243 N.S.R. (2d) 237, at paras. 30-31, that three related points must be brought home to the jury to counter the prejudice inherent in a multi-count indictment. However, he noted that the second two are really just examples of the first. The first is that only the evidence admissible with respect to the particular count can be considered when determining guilt or innocence on that count (the instruction to keep the evidence relating to each count separate). The second is that a finding of guilt on one count is not evidence of guilt on another. And the third is that evidence of discreditable conduct or criminal acts cannot be used to reason that the accused is the type of person who would have committed any of the offences (the propensity reasoning instruction).

[26] The fact that the second two are actually examples of the first critical instruction – that the jury must keep the evidence on each count separate – means that failure to give a propensity warning is not always fatal. Rather, the court may tailor the charge in a particular case to suit the circumstances of that case.

[27] This point was made in R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1 where Watt J.A., referring to B.M. and Rarru, reiterated the rule that in a trial where there are multiple complainants and counts, but not similar fact evidence, the jury should be instructed 1) not to use the evidence from one count as proof of another count, and 2) not to use the evidence from one count to conclude that the accused is a person of bad character, who is therefore likely to be guilty of another count. Watt J.A. explained that the second rule is a limiting instruction that tells the jury the permitted and prohibited uses of the evidence, and that “[t]he rule is of general, but not unyielding application.” (paras. 55 and 65).

[28] As such, the necessity of giving a propensity instruction is determined based on the particular circumstances of the case. In some cases, a propensity instruction is unnecessary and the failure to give one will not be fatal. See for example, R. v. Miller, 1999 CarswellOnt 3130 (C.A.); R. v. Cote, 2003 NBCA 38, 176 C.C.C. (3d) 89; R. v. H.S.S., 2009 ONCA 102, 242 C.C.C. (3d) 262; and R. v. A.W.B., 2015 ONCA 185, 322 C.C.C. (3d) 130. In other cases, a propensity instruction is required, such as where other discreditable conduct by the accused is brought into evidence. See for example, R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367; R. v. Chamot, 2012 ONCA 903, 296 C.C.C. (3d) 91; and R. v. B.D., 2016 ONCA 673.

[29] In R. v. J.R.M., 2015 ONCA 229, the failure to give the propensity instruction was not fatal – however, the trial judge’s failure to give the instruction to keep the evidence relating to each count separate was. There, two very young sisters complained at the same time to their grandparents that they had each been sexually abused by the appellant. The court held that the jury was unlikely to engage in propensity reasoning because of the interrelated nature of the complainants’ disclosure, and therefore the trial judge’s failure to give the propensity reasoning instruction did not cause prejudice.

[30] However, it was essential for the trial judge to warn the jury that it must not use the evidence of one count to prove any other count. The failure to give that critical instruction was fatal to the conviction.

[31] Crown counsel on this appeal submitted that while it would have been desirable to include a propensity warning, in the circumstances of this case the instruction the trial judge gave was more than sufficient to address any concern that the jury may have cross-pollinated the evidence in relation to the two complainants. I agree with this submission.

[32] The trial judge emphasized a number of times and in a number of ways that the jury must keep the evidence regarding each complainant separate. One of those (quoted above) was his analogy to an island to emphasize the point:

So an analogy that I would give is that each charge is like an island. You’ve got to stay on the island, on a particular island until you resolve what constitutes the evidence in that particular case and come to your conclusion, whether it be beyond a reasonable doubt as to guilt or innocence. You don’t take anything with you to the next island. You’ve got to start afresh and consider the evidence and the law in so far as that particular issue is concerned.

[33] Further, from the record there was no suggestion in either address by counsel that the jury should use the evidence in the prohibited manner. Nor did defence counsel request the propensity charge in addition to what the trial judge did say, nor was an objection made. Although none of these factors is definitive, they address the concern whether there was potential prejudice in this case.

[34] Finally, this was not a case where there was evidence of acts of disreputable conduct that were not the subject of the charge, making the likelihood of prejudice strong, or where the charged conduct was so prejudicial in itself, such as bestiality, that prejudice was virtually inevitable. In this case, there were two complainants’ allegations with significant differences. There was no direct evidence of collusion. Also, the defence was a complete denial – not that it may have happened in one case but not the other.

[35] The appellant submitted that because the complainant B.A. could not remember the events at trial, there was a risk, as in J.R.M., that the jury would use the other complainant A.S.’s evidence as corroborative of that of B.A. In my view, the result in J.R.M. is instructive for this appeal. In that case, where neither of the two instructions was given, the court held that it was only the failure to give the admonition to keep the evidence separate that was necessary, not the propensity instruction. In this case, reading the charge as a whole, including the numerous admonitions to keep the evidence separate and explanations of how to do that, the propensity instruction, as an example or amplification of that instruction, was not essential for the jury to understand that rule.

[36] I would not give effect to this ground of appeal.

Sentence Appeal

[37] Following the stay of the two sexual assault convictions, the appellant was sentenced to two years consecutive on each of the sexual interference charges. He submits that the sentence was unreasonably high and that the trial judge failed to take into account the following four factors:

1. The conduct was at the lower end of the spectrum because there was no penetration or extraneous threats of violence;

2. There is no reason why the mandatory minimum sentence of one year would not be appropriate in the circumstances;

3. The breach of trust was of a very low level as the appellant was just a neighbour; and

4. The appellant is 51 and has no prior criminal record.

[38] There is no basis to interfere with the sentence imposed. The trial judge considered all of the facts and circumstances. He did not consider these offences to be at the lowest end of the spectrum given the age of the victims, the limited position of trust of the appellant, and the nature of the sexual acts. Counsel at trial acknowledged that consecutive sentences were appropriate. Crown counsel asked for two to three years for each count consecutive. The trial judge did not err in the exercise of his discretion to impose a sentence of two years for each. I would not allow the sentence appeal.

Result

[39] I would dismiss the appeals against conviction, grant leave to appeal sentence and dismiss the appeals against sentence.

Released: November 23, 2016 (“K.F.”)

“K. Feldman J.A.”

“I agree. Janet Simmons J.A.”

“I agree. S.E. Pepall J.A.”