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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2018-03-14

Docket: C62625

Panel: Rouleau, Hourigan and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

A.S. Appellant

Counsel:

• Mark J. Sandler and Amanda Ross, for the appellant
• Jessica Smith Joy, for the respondent

Heard: March 8, 2018

On appeal from: the conviction entered on December 4, 2015 by Justice Robert Del Frate of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] The appellant was convicted on one count each of sexual interference, sexual exploitation, and sexual assault following a jury trial. The offences arose out of two incidents involving the appellant's stepdaughter. The first was alleged to have occurred when the complainant was 13 years old; the second approximately 18 months later. The complainant was 18 years old at the time of trial.

[2] In the first incident, the complainant alleged that, while laying on her bed, the appellant put his hand underneath her pajama bottom and touched, but did not penetrate, her vagina. Nothing more was said or done. The complainant testified that she could not tell if the appellant was awake when this touching happened. The appellant testified and denied that the incident occurred, but acknowledged that he had once fallen asleep on the complainant's bed. The defence motion for a directed verdict in relation to this incident was unsuccessful.

[3] In the second incident, the complainant alleged that the appellant touched her torso while he was in her bed, told her that he had a crush on her, explained sex to her and informed her of his sexual prowess. He offered to have sex with her, but told her that he would respect her if she said no. The complainant declined his offer and ran from her bedroom. The appellant testified that he was in the complainant's bedroom on the night in question to confront her about hard core pornography that he found on her computer earlier that day, and touched her only to see if she was awake.

[4] The sole issue on appeal is the judge's charge to the jury. The appellant submits that the trial judge erred 1) in failing to instruct the jury that evidence concerning one incident could not be used to support a finding of guilt in the other incident; 2) in instructing the jury on the requirements of R. v. W. (D.), [1991] 1 S.C.R. 742; and 3) in failing to address important inconsistencies in the complainant's testimony.

[5] In our view, the trial judge erred in failing to instruct the jury that evidence concerning one incident could not be used to support a finding of guilt on a charge relating to the other incident. The jury charge was both deficient and confusing in respect of this issue, and as a result the conviction cannot stand.

Analysis

The jury charge

[6] The indictment included three counts and the two incidents were relevant to each count. The Crown did not make a similar fact application in respect of the two incidents. Thus, the Crown had to prove each incident separately.

[7] The trial judge understood the importance of separating the incidents in his instructions and discussed the matter with the parties at length prior to completing his charge. However, his instructions dealt with the need to treat the counts separately rather than treat the incidents separately. The trial judge stated:

The indictment on which you are trying S.A. alleges that he committed three specific offences. Each allegation is a separate charge. You must make a separate decision and give a separate verdict for each charge. The 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 charge in the legal principles that I tell you apply to make your decisions on that charge. You must not use evidence that relates only to one charge in making your decision on any other charge.

[8] Although it is correct to say that each count in the indictment had to be decided separately based on the evidence related to that count, each count in the indictment included the two incidents, and these were not to be treated as similar fact incidents. The jury should have been instructed that each incident had to be proven separately, and that evidence concerning one incident could not be used to support a finding relating to the other incident.

[9] We cannot accept the Crown's submission that the looseness of the language – the use of the term "charge" rather than "incident" – is of no effect. Given the circumstances of this case – unrelated incidents included in the same counts – the language of the instruction is confusing. In these circumstances "charge" must mean "count", because the trial judge instructed the jury that three separate decisions were required, and there were only two incidents.

[10] The Crown submits that, read as a whole, the trial judge's instructions would have been understood by the jury. We do not agree. Although the trial judge related the incidents to the charges later in his instructions, in our view, the failure to clearly separate the incidents for purposes of the required analysis gave rise to the risk that the jury would engage in propensity reasoning – that it would conclude that the appellant was surely guilty of one offence because of the unlikelihood of his having also been charged with another. In the circumstances of this case, where each charge concerned two incidents and the Crown conceded that one incident could not be used as similar fact evidence in relation to the other, the jury had to be informed not to use the evidence concerning one incident to support a finding relating to the other incident.

[11] The failure of the appellant's trial counsel to object to the charge is a relevant consideration, but it is not determinative. It was incumbent on the trial judge to properly instruct the jury on the need to separate the two incidents, regardless of counsel's failure to object: R. v. Brown, 2007 ONCA 71, 221 O.A.C. 17, at para. 16.

[12] In light of our conclusion on this ground, it is unnecessary to address the other grounds of appeal.

Conclusion

[13] The appeal from conviction is allowed, and a new trial is ordered.

[14] The Crown concedes that the complainant did not meet the definition of a young person under s. 153(2) of the Criminal Code and that the charge of sexual exploitation should not have been left with the jury. Accordingly, an acquittal is entered on this count.

"Paul Rouleau J.A."

"C.W. Hourigan J.A."

"Grant Huscroft J.A."