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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2018-12-07

Docket: C63297

Panel: Sharpe, Hourigan and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Norwayne Anderson Appellant

Counsel:

• Jennifer Penman and Renee Gregor, for the appellant
• Amy Alyea, for the respondent

Heard: November 21, 2018

On appeal from: The conviction entered on May 27, 2016 by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

(1) Introduction and Background

[1] The appellant was charged with five counts of sexual assault under s. 271 of the Criminal Code, and one count of sexual exploitation under s. 153. The jury was unable to reach a verdict on one sexual assault count. The appellant was found guilty on the remaining five counts.

[2] The appellant worked in the modeling industry as an agent. The charges arose from his interactions with three male models – J.K., M.K. and J.O.

[3] The appellant met J.K. (age 16) in 1998. He approached J.K. on the subway and asked him if he wanted to model. J.K. attended at the appellant's home office for a photo shoot. The appellant pulled on the waistband of J.K.'s underwear to see if he had shaved his pubic hair, as requested for the shoot. The incident lasted for five seconds. This was the basis for the conviction on count 1 (sexual assault).

[4] The appellant met M.K. (J.K.'s younger brother; age 16) in 2000 at J.K.'s fashion show. The appellant told him that he could be a model. At the first photoshoot, the appellant stroked M.K.'s penis. This evidence resulted in convictions on counts 2 (sexual assault) and 3 (sexual exploitation).

[5] The appellant met J.O. (age 24) in 2009. During a photo shoot, the appellant grabbed J.O.'s penis over his underwear and adjusted it (count 4). On another occasion, the appellant rubbed J.O.'s penis for about 5 minutes (count 5). Lastly, J.O. stayed at the appellant's apartment after a night out. J.O. was very intoxicated. He woke to find the appellant standing over him, trying to take his pants off. The jury could not reach a verdict on this count (count 6).

[6] These incidents were not reported to the police until 2013, even though J.K., M.K., and J.O. maintained professional and personal relationships with the appellant for many years after the events.

[7] The appellant testified and denied all of the allegations.

(2) Grounds of Appeal

(a) Failure to Grant Severance

[8] The appellant applied to have the J.O. charges severed from the J.K./M.K. charges. There was no similar fact evidence application as it related to the evidence of J.K. and M.K. on one hand, and J.O. on the other. The appellant argued that the two groups of counts lacked a factual and legal nexus and risked "cross-pollination and tainting" of the evidence. The application was dismissed.

[9] Section 591(3)(a) of the Criminal Code grants trial judges a broad discretion to sever counts in the "interests of justice". The decision attracts considerable deference. Appellate interference is only warranted when the decision is unjudicial or resulted in an injustice: R. v. Litchfield, [1993] 4 S.C.R. 333, at pp. 353-354; and R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 14-18.

[10] As this court held in R. v. A.C., 2018 ONCA 333, at para. 24: "The interests of justice often call for a joint trial as severance has the potential to impair both trial efficiency and the truth-seeking function of the trial." See also Last, at para. 17; and R. v. Sciascia, 2017 SCC 57, [2017] 2 S.C.R. 539, at para. 33. The trial judge's ruling on severance addresses both concerns, as well as the factors identified by Deschamps J. in Last, at para. 18:

The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons….

[11] The trial judge referred to this passage and applied the factors germane to this case. She found a factual and legal nexus because, "[a]ll of the allegations involve allegedly unwanted sexual touching by the accused of the complaints [sic] in the context of his role as their modeling agent and in the situation of his performing photo shoots of the three complainants." The trial judge was not persuaded that the age differences between the K. brothers and J.O. undermined the factual nexus. She acknowledged that the timing of the various offences was a factor that favoured severance; however, she held, "the way these offences make their way to police is explained by having the six counts tried together." The trial judge concluded that any danger of cross-pollination or propensity reasoning could be addressed with cautionary jury instructions.

[12] The trial judge's ruling reflects no error. This ground of appeal is dismissed.

(b) Failure to Declare a Mistrial

[13] The appellant argues that the trial judge erred in failing to grant a mistrial in response to a portion of M.K.'s testimony. During cross-examination, M.K. said that he had heard from someone at the agency that the appellant had done the same thing (i.e., sexual assault) to someone else. This happened late on a Friday. Submissions on the issue were made on Monday morning. Defence counsel requested a mistrial due to the delay between the testimony and any curative instruction that might be given. The trial judge refused to declare a mistrial. After vetting her curative instruction with counsel, to which no objection was taken, she warned the jury that the evidence was double hearsay and irrelevant. This was at 11:11 a.m. on Monday morning.

[14] The appellant argues that he was prejudiced by this evidence and that the instruction was an insufficient response. He submits that M.K.'s testimony was barred by a pre-trial ruling preventing the Crown from adducing this type of evidence.

[15] The trial judge did not err in refusing to declare a mistrial. A mistrial is a discretionary remedy of last resort. Embedded in the throes of a trial, the trial judge is ideally situated to make this assessment. This is another instance in which a trial judge's exercise of discretion is entitled to deference on appeal: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 36; and R. v. Jeanvenne, 2010 ONCA 706, at para. 58.

[16] We acknowledge that in her earlier ruling, the trial judge spoke of this type of inadmissible evidence in more ominous terms, holding that any prejudice could not be cured by an instruction. Nevertheless, the prejudice created by this single piece of evidence did not warrant a mistrial. The trial judge acted swiftly when asked to do so by defence counsel. She cannot be faulted for failing to act earlier.

[17] This ground of appeal is dismissed.

(c) The Directed Verdict Application

[18] The appellant argues that the trial judge erred in dismissing his directed verdict application on count 1 (sexual assault – J.K.) and count 3 (sexual exploitation – M.K.).

[19] A trial judge's directed verdict decision "is a question of law which does not command appellate deference": R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48. Here, the trial judge's conclusions were correct.

[20] On count 1, there was evidence upon which the jury could find that, irrespective of whether the appellant was motivated by a sexual purpose, the touching was, objectively speaking, sexual in nature. It was conduct capable of violating J.K.'s sexual integrity: R. v. Chase, [1987] 2 S.C.R. 293, at p. 302.

[21] The appellant's application for a directed verdict on count 3 was focused on a single element of the offence – whether the appellant stood in "a position of trust or authority towards" M.K. The appellant's position at trial was that there was no professional relationship between the appellant and M.K. at that point in time. They had just met. The only factor that pointed to a position of trust or authority was the age difference between them (the appellant being 30, M.K. 16).

[22] The trial judge ruled that this element of s. 153 may be satisfied even in the absence of a formal legal relationship between an adult and a young person. The touching occurred when M.K. was hoping that the appellant would represent him. The trial judge concluded that this context, in addition to the age difference, provided some evidence sufficient to permit the matter to be left with the jury.

[23] We agree with the trial judge's analysis. This ground of appeal is dismissed.

(d) Prior Consistent Statements

[24] During their testimony, all three complainants made reference to having previously told others about being abused by the appellant before they went to the police in 2013.

[25] There was discussion among the complainants and with third parties. J.K. and M.K. discussed their experiences, although in not much detail. M.K. and J.O. had a similar discussion after M.K. and J.K. had already reported the matter to the police, but before J.O. made a report. J.K. told several of his friends. M.K. told a number of people, including his girlfriend, his psychiatrist, and S.S., a partner at the appellant's modelling agency. J.O. shared his experience with an agent. With the exception of S.S., none of these other people testified at trial.

[26] For the most part, the evidence concerning the prior statements involved little more than who the complainants told and when. The Crown at trial argued that these statements were admissible as evidence of narrative (in terms of how the case came to the attention of the police), and to rebut allegations of recent fabrication.

[27] Counsel for the appellant submits that the trial judge misconstrued the recent fabrication exception and argues that her instructions to the jury were confusing and warrant a new trial.

(i) Admissibility

[28] Although the statements were presumptively inadmissible, they were receivable under a number of exceptions to the rule. They were admissible as part of the narrative to explain how the allegations came before the court: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 37; R. v. M.(C.), 2014 ONCA 611, at paras. 64 and 91; and R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-40.

[29] The statements were also admissible to explain the long delay in reporting, a significant theme at trial: R. v. Bradford, 4 C.R. (6th) 150 (Ont. C.A.), at para. 21.

[30] Lastly, some of the statements were admissible to rebut allegations of recent fabrication: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. As the Supreme Court held in R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 33, fabrication may include being influenced by "outside sources". In this case, the defence alleged that the charges were "the product of tainting and collusion" between the three complainants.

[31] There were other aspects to the recent fabrication allegations. With J.O., the purported motive was a financial dispute that had arisen with the appellant in 2011 to 2012. In relation to J.K. and M.K., it was alleged that they fabricated their allegations to support each other. Defence counsel suggested to M.K. that he was angry with J.K. because he had taken things too far by going to the police by himself and discussing the appellant's actions with both brothers. M.K. denied the suggestion that he had to go along with his brother's story to avoid being labeled a liar in the modeling community. As defence counsel said in her closing address:

Perhaps J.O. is making these allegations because Norwayne owed him money. Perhaps J.K. is supporting his brother. Maybe M.K. is bitter about the end of his career. Maybe it's for…other reasons altogether, it doesn't matter.

(ii) The Trial Judge's Instructions

[32] As the Crown acknowledges on appeal, the trial judge's instructions could have been much clearer on the use of the prior consistent statements.

[33] The trial judge instructed the jury three times on this issue. In her initial instructions, she reviewed the previous statements. She instructed the jury that prior consistent statements are generally inadmissible, but subject to exceptions, including recent fabrication. The trial judge provided the following cautions:

First, it is impermissible to assume that because a witness has made the same statement in the past, he is more likely to be telling the truth. Second you are not to use the prior consistent statements…for the truth of their content.

You may only use the evidence of the prior consistent statements for two purposes. First, that it can be supportive of a particular allegation in the sense that it creates a logical framework for its presentation, or it explains how the allegation has come to court before you. Second, it can be used by you in assessing the truthfulness of the complainants, in this case [J.K., M.K., and J.O.]. It is used in this way to support their credibility but not for the truth of the statement's content.

The trial judge did not explain how the statements might be used to rebut allegations of recent fabrication.

[34] Defence counsel objected to this portion of the charge, arguing that the trial judge erroneously classified some of the complainants' communications as prior consistent statements. She argued that a prior consistent statement must be proved independently, through the evidence of the recipient of the statement, not by the declarant himself. That is, an assertion by a complainant that he repeated the same story before is not a prior consistent statement. The Crown at trial (not Ms. Alyea) and the trial judge accepted this argument and the jury was re-charged accordingly. The trial judge told the jury that if the recipient of a prior statement did not testify, then that statement could not be used as a prior consistent statement. It was merely evidence of what a complainant told the recipient. The trial judge then repeated her warnings and instructions reproduced above.

[35] The trial judge's re-charge was incorrect on the issue of what qualifies as a prior consistent statement. Evidence that a complainant previously told someone about the event in issue may come from the declarant or from the recipient of the statement: R. v. Campbell, 17 O.R. (2d) 673 (C.A.), at p. 685; and R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 28. The testimony of a complainant that he told others about the event is direct evidence of a prior statement. In David Watt, Watt's Manual of Criminal Evidence, 2018 (Toronto: Thomson Reuters Canada Limited, 2018), at §19.08, the author writes that the prohibition against the admission of prior consistent statements "bars evidence of the statement from both the declarant and the recipient." Similarly, in Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada Inc., 2018), the authors state, at §7.1: "A witness, whether a party or not, may not repeat his or her own previous statements concerning the matter before the court, and may not call other persons to testify to those statements."

[36] Self-reported prior utterances of a witness trigger the same dangers typically associated with prior consistent statements – the risk of impermissible reasoning (e.g., "he told the same story to different people, it must be true"). The trial judge was led into error by taking numerous statements off the table as prior consistent statements. However, this error inured to the benefit of the appellant.

[37] The trial judge was asked to correct her instructions on prior consistent statements again. Defence counsel complained that the trial judge had dictated to the jury what was a prior consistent statement and what was not. The trial judge told the jury that it was for them to decide. There were no further objections. Moreover, the jury asked no questions about this body of evidence.

[38] Although the trial judge's instructions on prior consistent statements were deficient, this does not automatically amount to reversible error. In R. v. M.P., 2018 ONCA 608, at para. 80, Watt J.A. wrote, "The effect of a failure of a trial judge to properly apprise the jury about the limited use of prior consistent statements in reaching its verdict varies. Sometimes fatal. Other times, not."

[39] Importantly, the jury was properly warned of the dangers associated with prior consistent statements. They were told twice that prior statements could not be used to enhance the likelihood that any of the complainants were telling the truth and they could not use any of the statements for the truth of their contents. The fact that none of the statements contained much in the way of incriminatory detail already minimized these dangers.

[40] As noted above, the trial judge erroneously narrowed the potential reach of this evidence. Some of the evidence legitimately relied upon by the Crown was completely neutralized by the re-charge. Moreover, although the trial judge mentioned recent fabrication, she did not explain how the prior consistent statements might rebut these allegations. On the facts of this case, this omission benefitted the appellant.

[41] In the end, the jury was adequately equipped to deal with this evidence. This ground of appeal is dismissed.

(e) The Crown's Closing Address and the Alternative Motive

[42] The appellant argues that the trial was unfair because, during her closing address, the Crown relied on the appellant's sexual desire towards complainants as a motive to commit the offences. The appellant argues that the Crown had not previously alleged this motive. He claims that he was "ambushed."

[43] The appellant's sexual desire was a live issue at trial. The appellant was not deprived of his opportunity to make full answer and defence. This ground must fail.

(3) Disposition

[44] The appeal is dismissed.

"Robert Sharpe J.A."

"C.W. Hourigan J.A."

"Gary T. Trotter J.A."