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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: April 5, 2018

Docket: C60597

Panel: Watt, Hourigan and Miller JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

A.C.

Appellant

Counsel

For the Appellant: David M. Humphrey and Ian B. Kasper

For the Respondent: Lisa Joyal

Hearing

Heard: November 24, 2017

On appeal from: The convictions entered on February 4, 2015 by Justice Timothy Ray of the Superior Court of Justice, sitting with a jury.

Decision

Hourigan J.A.:

Introduction

[1] Following a trial by jury, the appellant was convicted of several offences against his former common law wife, R.C., and her three daughters from her previous marriage. One sexual assault charge related to R.C. One charge of sexual assault and one of sexual exploitation concerned her daughter, N.L. Three simple assault charges related to N.L. and R.C.'s other two daughters, K.L. and S.L.

[2] The appellant appeals his convictions on five grounds. The first pertains to the trial judge's refusal to grant his application for severance of the sexual assault charge involving R.C. The appellant also submits that the trial judge erred in his application of the collateral fact rule to curtail defence counsel's cross-examination of certain Crown witnesses, and in his similar fact instruction to the jury.

[3] The final two grounds concern the trial judge's refusal to allow the appellant to sit at counsel table during the trial and his failure to correct alleged impropriety in the Crown's closing address. The appellant acknowledges that these two alleged errors are not sufficient on their own to warrant a new trial, but submits that the cumulative effect of these errors with the others resulted in an unfair trial.

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

Facts

[5] R.C. had three daughters with her ex-husband: N.L., S.L., and K.L. (the "daughters"). In 1998, the appellant moved into R.C.'s home with her daughters, and in 1999, they had a child together, G. N.L testified that while she had "mixed emotions" about the appellant at the start, their relationship began "fairly positive". S.L. and K.L. agreed that times were good in the beginning of the relationship. In 2002, the appellant won a "Father of the Year" award based on letters the family had sent to a local newspaper. The same year, the daughters decided to stop seeing their biological father.

[6] R.C. used physical discipline against the daughters prior to the appellant moving in. Despite testifying to good times in the beginning of the appellant's relationship with the family, the daughters said that soon after he moved in, the appellant began physically disciplining them. The daughters testified that the appellant would grab them, pin them against walls, pull their hair, slap them, and call them names. Sometimes, when the daughters used bad language or lied, the appellant and R.C. made them eat soap.

[7] S.L., K.L., and R.C. testified that N.L. was the closest of the daughters to the appellant. They said she and the appellant spent a lot of time together, which made S.L. and K.L. jealous, and that the family used to make fun of N.L. for being "obsessed" with and having a "crush" on the appellant. However, that relationship deteriorated and N.L. testified that in her teen years, she felt like a "pariah" in the family. The daughters testified that N.L. began receiving the brunt of the physical discipline.

[8] N.L. testified that around when she turned 16 years old, the appellant began touching her sexually on a regular basis. The incidents usually happened in the basement on a couch, when the rest of the family was home. They included digital penetration and incidents where the appellant licked her vagina, "butt crack", and anus. N.L. said a handful of similar incidents happened in her bedroom, and once at a drive-in. None of the family members ever saw any of this alleged sexual abuse.

[9] N.L. testified that in 2007, just after returning from a March break trip with her school, there was an incident where the appellant pinned her against a wall and R.C. slapped her so hard that she could not hear. Afterward, when N.L. got to school late, she began crying and was directed to speak with the school social worker, A.B. N.L. told A.B. about the incident and about the physical and emotional abuse in the home, but did not disclose any sexual abuse. N.L. said she was surprised to learn that K.L. had already told A.B. about the incident. K.L. confirmed that she spoke to A.B. about the incident.

[10] The next month, after another argument with the appellant and R.C., N.L. decided to leave the family home. Shortly before doing so, she told K.L. that the appellant had been touching her inappropriately. K.L. did not repeat this to anyone at the time. When N.L. was packing to leave, the appellant pushed or kicked her down the stairs. K.L. was not home when this occurred, but S.L. and R.C. both saw this happen.

[11] After N.L. left, the Children's Aid Society ("CAS") began an investigation. R.C. testified that the appellant told the family not to disclose any abuse. For their part, S.L. and K.L. said that they decided to lie to CAS out of fear that the family would be split up. No one disclosed any physical or sexual abuse to CAS.

[12] Within a year after N.L. left, S.L. and R.C. learned that N.L. had disclosed her sexual abuse to K.L. R.C. confronted the appellant but he denied any wrongdoing. R.C. said she tried to contact N.L. but never heard back. In 2010, N.L. wrote to R.C. about the sexual abuse. R.C. again confronted the appellant, and in reply he asked her whether she thought he would do something like that. In 2011, S.L. and K.L. threatened to leave the family home after another family argument. In late December 2011, R.C. terminated her relationship with the appellant, but he did not move out until March 2012. According to S.L., she and K.L. helped the appellant move out and spent Easter dinner with him a week or two later.

[13] In April 2012, R.C. met N.L. for coffee. R.C. encouraged N.L. to report her allegations to the police. N.L. did so that same month. In the course of N.L. reporting her allegations, R.C. alleged for the first time that the appellant had sexually abused her as well. R.C. testified that in 2001, she and the appellant decided to attempt anal intercourse. The attempt was not pleasant for R.C., and she decided she did not want to do it again. R.C. said that on a later occasion, the appellant came into her bed while she was sleeping, pulled down her pyjama pants, and stimulated her anus with his tongue. She told the appellant that she did not feel like engaging in anal intercourse, but the appellant got on top of her and forced himself inside her anus anyway. R.C. said incidents of anal intercourse continued on a regular basis and she continued to say no. She eventually stopped saying no in 2005. After that point, R.C. and the appellant would engage in anal intercourse once or twice a year.

[14] At the time when N.L. and R.C. made their reports to police, there was a joint custody agreement between R.C. and the appellant concerning their child, G. R.C. agreed that the charges laid against the appellant as a result of these reports figured prominently into her application for sole custody of G.

[15] The appellant did not testify at trial. The defence position was that R.C. consented to the acts in question, and that the daughters' allegations never happened. The defence argued that R.C. and her daughters had a mutual motive to fabricate the allegations in the hopes of increasing R.C.'s chance of success on her application for full custody of G.

Issues

[16] This appeal raises five issues:

1. Did the trial judge err in refusing to sever the count of sexual assault against R.C.?
2. Did the trial judge err in refusing to allow the appellant to sit at counsel table?
3. Did the trial judge err in his application of the collateral fact rule?
4. Did the trial judge err in his instructions to the jury on similar fact evidence?
5. Did the trial judge err in failing to provide a corrective instruction after the Crown's closing address?

Analysis

(1) The Severance Application

[17] Prior to trial, the appellant applied to have the sexual assault charge involving R.C. severed. Defence counsel emphasized the differences between R.C.'s and the daughters' allegations, and the potential for moral and reasoning prejudice. Defence counsel indicated that "while one can never determine conclusively whether or not testimony will be forthcoming", the appellant's intention was to testify only in relation to the R.C. charge. Defence counsel explained that the appellant's defence to the R.C. charge would be one of consent, whereas on all other charges, it would be simply that the allegations were not true.

[18] The trial judge applied the factors for severance in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 145, at paras. 17-18, and refused the application. He held that the appellant's testimonial intention was not objectively justifiable, as there was "nothing to indicate the weight of the evidence concerning the children will be less persuasive such that the defendant would be unlikely to give evidence on those counts, but would concerning the other counts" (para. 7). There was a factual nexus across all the counts. The time periods overlapped. The counts all involved family members and were alleged to have occurred in the family home. Multiplicity of proceedings was less of a concern, as R.C. would be the only witness who would have to testify twice should her count be severed.

[19] In concluding that the appellant had not met his onus on the application, the trial judge held, at paragraph 11:

The balancing of the various factors suggests that the only live factor in this case is the danger of reasoning prejudice, and I am satisfied that an appropriate jury instruction would prevent prejudice to the defendant. On the other side of the balance is the presumption that all counts should be tried together in one trial. It is more efficient if R.[C.] were to give her evidence once, and that would include her evidence of the atmosphere and dynamics in the household throughout the period covered in the counts. Severance can impair not only efficiency but the truth seeking function of the trial.

[20] He was satisfied that, "[w]hile not minimizing the risk…any reasoning prejudice could be adequately dealt with by appropriate jury instructions" (para. 7).

[21] The appellant acknowledges that an appellate court should only interfere with a trial judge's severance ruling if the judge acted unreasonably or if the ruling resulted in an injustice. He submits that that high bar is met in this case, as the risk of moral and reasoning prejudice was very high, and the only factual nexus between R.C.'s allegation and the other allegations were the time frame and the fact that the complainants were all family members. The appellant argues that severance was particularly appropriate in this case given that R.C. was the only witness to give evidence in relation to her allegation of sexual assault. The evidence on that charge was not so complex that there would be any difficulty in holding a brief separate trial.

[22] The appellant also points out that the Crown was not seeking to bring an application for cross-count admissibility on the R.C. count. He relies on this court's decision in R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, for the proposition that there is even less justification to refuse severance where no similar fact application is brought. The appellant disputes the notion that R.C.'s entire evidence, including her sexual assault allegation, was necessary to enhance the truth-seeking function of the trial. Finally, he argues that his testimonial intention was objectively reasonable due to his differing defences in relation to the R.C. count and all the others.

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

[24] Any appellate analysis of a trial judge's severance ruling must start from a position of deference: R. v. Riley, 2017 ONCA 650, 351 C.C.C. (3d) 223, at para. 138; Last, at para. 14. The burden is on the applicant to convince the trial judge that the interests of justice require severance under s. 591(3) of the Criminal Code: R. v. Arp, [1998] 3 S.C.R. 339, at para. 52. 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: Last, at para. 17; R. v. Sciascia, 2017 SCC 57, 355 C.C.C. (3d) 553, at para. 33.

[25] The trial judge properly identified the factors to consider on a severance application. The Supreme Court identified these factors in Last, at para. 18:

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.

[26] In my view, it was open to the trial judge to conclude that the risk of moral and reasoning prejudice could be dealt with by appropriate jury instructions in this case. His conclusion that there was a sufficient factual nexus across all counts was reasonable, given that all of the charges stemmed from the same police investigation, involved members of the same family, and were alleged to have largely occurred under the same roof. The trial judge acknowledged that multiplicity of proceedings was not a large concern, but it was reasonable for him to conclude that trial efficiency would be better served if R.C. were to give her evidence only once, and that this would enhance the truth-seeking function of the trial by giving the jury a full picture of the family dynamic.

[27] This court's decision in Jeanvenne does not assist the appellant. In that case, this court held that the trial judge erred in refusing the accused's application to sever two murder charges. In the course of his analysis, Blair J.A. reasoned that, "[w]hen there is no similar fact evidence connecting the two crimes, there is even less justification for refusing to sever" (para. 34). However, this was but one factor in Blair J.A.'s analysis: see paras. 34-48. Notably, Blair J.A. relied on the fact that there was "no factual or temporal nexus whatsoever" between the murders. The same cannot be said in the appellant's case.

[28] I do, however, agree with the appellant that his stated intention to testify in relation to the R.C. count, but not the others, was objectively justifiable. On a severance application, the accused has the burden to provide information that satisfies the trial judge that "objectively, there is substance to his testimonial intention". That information may include anticipated defences: Last, at para. 26. In holding that the appellant's testimonial intention was objectively unreasonable, the trial judge reasoned, as it was open to him to do, that there was nothing to indicate that the evidence on the counts involving the daughters would be "less persuasive." However, the trial judge should have also engaged with the potential defences.

[29] I agree with the appellant that it would make sense for him to testify in relation to R.C.'s allegation as his defence was one of consent, but not to testify in response to the other allegations, as his position was that they never occurred. However, even where objectively justifiable, the accused's testimonial intention is only one factor in the analysis and may not be a significant one: Last, at para. 30. It can be "outweighed by factors that demonstrate that the interests of justice require a joint trial": Last, at para. 26. However, in the circumstances of this case, I am not persuaded that this factor was enough to tip the balance in favour of severance, given the countervailing factors that the trial judge identified.

(2) Refusal to Let the Appellant Sit at Counsel Table

[30] After jury selection and prior to trial commencing, defence counsel requested that the appellant be allowed to sit at counsel table during his trial. The appellant was out of custody and did not present a security risk. The Crown took no position on the request.

[31] Responding orally, the trial judge said that absent an exceptional reason, the accused should sit in the prisoner's box whether in custody or not.

[32] In his opening instructions, the trial judge cautioned the jury:

You should not draw any inference from the fact that [the accused] is sitting in the prisoner's dock. Whether [the accused] is in custody or not, that is where a person accused of a crime sits during their trial.

[33] The trial judge subsequently released written reasons on this issue. In them he added, at paragraph 3:

To routinely permit an accused person to sit at the counsel table or in the body of the court where there are no security concerns has the serious potential of implying to the observer that those ordered to sit in the prisoner's dock are more likely guilty of something. Whereas if the general practice, as is the case in Ottawa, is for the defendant to sit in the prisoner's dock in serious cases then the likelihood of an improper or unfair inference is reduced. This is a serious case.

[34] In his closing address, defence counsel reminded the jury of the presumption of innocence and said:

…every day [the accused has] had to sit in this prisoner's box, a place where it's impossible, I respectfully submit, for anybody to sit and look innocent, it doesn't matter because it's not about how anybody looks when they're in a prisoner box.

[35] The appellant submits that the trial judge wrongly relied on the "seriousness" of the case in ordering him to sit in the prisoner's box, as this is irrelevant where there is no security concern. He argues that he was entitled to have this issue determined on its own merits, not on its implications for in-custody accused in future proceedings. While the trial judge's instruction to the jury that an accused person sits in the box whether in custody or not was well intentioned, it could have had the negative effect of turning the jurors' minds to whether the appellant was in custody. The appellant acknowledges that even if the trial judge erred in this ruling, the error does not on its own warrant a new trial. He submits that this error contributed to the overall unfairness of his trial.

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

[37] Like a trial judge's decision on a severance application, a trial judge's ruling in relation to where an accused sits during his trial is discretionary, and this court should begin from a place of deference: R. v. Lalande, 138 C.C.C. (3d) 441. While the default placement of an accused on trial is in the prisoner's box, there is no presumption in this regard. In every case, the accused's placement must permit him to make full answer and defence, but the issue is to be assessed on a case-by-case basis, having regard to the interests of a fair trial and courtroom security in the particular circumstances of the case: Lalande.

[38] The trial judge erred in considering the seriousness of the offence as a relevant factor. In and of itself, the seriousness of the offence says nothing about security concerns or the interests of a fair trial. The trial judge also erred in considering the impact of his ruling on hypothetical in-custody accused in future proceedings. I agree with the appellant that he was entitled to have this issue determined on its own merits.

[39] However, I need not determine whether the ruling would have been the same had the trial judge not considered these erroneous factors, as there is nothing to show that any prejudice flowed from the appellant's placement in the prisoner's box. There is no basis to suggest that the appellant's placement impaired his right to make full answer and defence. The trial judge instructed the jury not to give his placement any weight. The jury can be trusted to have followed that instruction. Moreover, defence counsel addressed the appellant's placement in his closing address and in so doing, emphasized the presumption of innocence.

(3) The Collateral Fact Ruling

[40] On the Crown's theory of the case, the appellant controlled the family with aggression and abuse from the outset, and R.C. and her daughters lived in fear of him. Defence counsel sought to challenge this theory by questioning Crown witnesses about the appellant's 2002 "Father of the Year" award. N.L. acknowledged that the appellant won the award based on letters the family wrote to a local newspaper, but denied personally participating in writing them. At the preliminary inquiry, however, both R.C. and S.L. had testified that N.L. participated.

[41] After N.L. testified, the Crown submitted that the appellant had put his character in issue when defence counsel tendered evidence about the "Father of the Year" award. Defence counsel replied that the evidence was introduced not to establish the appellant's good character but to undermine N.L.'s credibility. After submissions, the trial judge provided the following mid-trial instruction:

You heard a series of questions and answers concerning [the accused] receiving an award. The answers that you heard [from] N.L., on the issue of whether or not she was involved in writing letters to nominate [the accused] for the award, may be used in assessing her credibility on that issue. The answers, however, cannot be used by you as evidence of [the accused's] good character.

[42] S.L. testified after N.L. Part way through S.L.'s testimony, the Crown applied to prohibit defence counsel from asking the remaining Crown witnesses any questions about N.L.'s involvement in writing the letters on the basis that it was a collateral issue. Defence counsel argued that the issue was not collateral for two reasons:

…the questions we seek to ask of two Crown witnesses is [sic] not collateral for a number of reasons. First, it does go to credibility… if the jury hears, [R.C.], for example, say, no, it was [N.L.] and her sisters that were writing these applications and faxing them in, the jury could accept that and that could be a significant blow to [N.L.]'s credibility. That would be one basis upon which the questions would be admissible, in our respectful submission.

More importantly, we suggest that it relates to an accurate account of the narrative because we've heard about a household that may have been punctuated with physical discipline and yelling, but it may not have always been that way. That also ties into what one of our positions is, and that's, respectfully, that these allegations are a fabrication… So we're just attempting to call evidence that sets out the narrative as we feel is an accurate reflection of how things transpired.

[43] The trial judge prohibited defence counsel from asking any further questions about N.L.'s involvement in writing the letters. He noted that defence counsel did not ask N.L. why she did not participate, so it was not established that she did not do so because her relationship with the appellant and the family dynamic were poor. He rejected defence counsel's argument that contradicting N.L. on this issue would correct the narrative. While he accepted that the questions may go to N.L.'s credibility, the collateral fact rule operated to prevent questions that went solely to that issue. The trial judge was not concerned about wasting time, but was worried about confusing the jury about the issues, particularly given his mid-trial instruction about the "Father of the Year" award evidence:

Both counsel were of the view that I should give a mid-trial instruction concerning the award and that it was not to be considered as going to the accused's good character. To persist in questioning other witnesses in cross-examination may well have the effect of undermining my instruction for what would be, at best, a contradiction of the complainant on what is clearly not an issue in this case.

[44] The trial judge acknowledged that R. v. Seaboyer, [1991] 2 S.C.R. 577, dictates that defence evidence should be restricted with caution, but held that his ruling did "absolutely no such thing."

[45] The appellant submits that defence counsel's proposed questions about N.L.'s participation in writing the "Father of the Year" letters went to the heart of the Crown's case: what was the nature of the relationships in the house at that time (up until 2002)? In addition to going to N.L.'s credibility, had the defence elicited evidence through S.L. and R.C. that N.L. did participate, it would be open to the jury to infer that she did so because she believed the appellant was a great father and that the home atmosphere was not as bad as she made it seem. The appellant argues that defence counsel was not seeking to call extrinsic evidence, but merely to ask a few questions of witnesses whom the Crown was already calling. Thus, concerns about distracting the jury or taking up too much time did not arise. Further, the trial judge's concern that defence counsel did not ask N.L. why she did not write the letters was misplaced, as defence counsel rejected the premise that she did not do so. The appellant submits that prohibiting the defence from this line of questioning was a serious error resulting in serious prejudice, particularly given that courts must exercise restraint in restricting evidence that could assist the defence.

[46] I am of the view that the parties and trial judge below, and consequently the parties on appeal, have operated on a misunderstanding of what the collateral fact rule actually prohibits. This is unsurprising, given that the rule has historically suffered from confusion in its application. The rule operates to prevent a party from calling extrinsic contradictory evidence to undermine the credibility of an opposing party's witness in relation to a collateral issue. It does not operate to confine the scope of what is otherwise proper cross-examination: R. v. MacIsaac, 2017 ONCA 172, 347 C.C.C. (3d) 37, at para. 58; R. v. Sanderson, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para. 46, citing R. v. G.P., 31 O.R. (3d) 504; R. v. Khanna, 2016 ONCA 39, 127 W.C.B. (2d) 613, at para. 9; Landmark Vehicle Leasing Corporation v. Mister Twister Inc., 2015 ONCA 545, 257 A.C.W.S. (3d) 224, at paras. 20-21. The rule is based in trial efficiency and seeks to avoid confusing the jury and eating up too much time with the sub-litigation of non-essential issues: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015), at p. 476.

[47] In this case, the Crown's application to prevent defence counsel from asking the remaining Crown witnesses about N.L.'s participation in the letter-writing on the basis of the collateral fact rule was at least premature. Defence counsel indicated that they were not seeking to call independent evidence to contradict N.L., but to simply ask S.L. and R.C. about this subject in cross-examination. Had S.L. and R.C. testified as anticipated that N.L. did participate, that presumably would have been the end of it. Had they testified that N.L. did not participate, defence counsel would have been entitled to impeach them on the basis of their preliminary inquiry testimony in the normal course of cross-examination. The collateral fact rule would only have arisen had the defence sought to introduce independent extrinsic evidence to contradict N.L.'s assertion that she did not participate. For example, if the defence sought to call the newspaper reporter who wrote the "Father of the Year" article, the defence may well have been properly prohibited from doing so under the collateral fact rule.

[48] Given the above, the Crown could only have applied for a ruling at the time that it did on that basis that the scope of defence counsel's cross-examination of the remaining Crown witnesses should be curtailed in relation to N.L.'s participation in writing the letters. Cross-examination is fundamental to a fair trial and counsel on both sides are to be afforded wide latitude to test a witness' credibility, even in relation to collateral matters: R. v. R. (D.), [1996] 2 S.C.R. 291, at p. 305; R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515, at para. 22; R. v. S.B., 2016 NLCA 20, 377 Nfld. & P.E.I.R. 84, at para. 37, reversed on different grounds: 2017 SCC 16, [2017] 1 S.C.R. 248. There is no reason for this to be any different when counsel seeks to test one opposing witness' credibility by eliciting contradictory evidence in the cross-examination of a different opposing witness. However, the right to cross-examination is not without limits: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 44-45, 50. Cross-examination may be limited, for example, where the proposed line of questioning is abusive or has little to no relevance or probative value: Lyttle, at para. 44; R. v. Mitchell, 2008 ONCA 757, 80 W.C.B. (2d) 796, at paras. 7, 18-19. When considering the scope of defence counsel's cross-examination, the prejudicial effect of the line of questioning must substantially outweigh the probative value before it can properly be curtailed: Seaboyer, at 611.

[49] I do not see anything on this record that called for defence counsel's cross-examination to be curtailed so as to prevent the defence from asking the remaining Crown witnesses about N.L.'s participation in writing the letters. If S.L. and R.C. testified as anticipated, their testimony that N.L. helped write the letters had some probative value. Not only would it be relevant to N.L.'s credibility on that specific issue, but it would be relevant to a central issue in the case: the nature of the relationships in the home from when the physical abuse allegedly began. While defence counsel did not ask N.L. why she did not participate in the letters, I accept the appellant's submission that they were not obligated to do so given that they rejected the premise that she did not participate. Had S.L. and R.C. testified that N.L. did participate, defence counsel could have properly put to the jury that it was open to them to infer that things in the home in the earlier years were not as bad as N.L. alleged. While there may have been other available inferences for why N.L. did or did not participate, it was for the jury to determine what inferences to draw.

[50] It is worth noting that even if the collateral fact rule did operate to limit the scope of otherwise proper cross-examination of opposing witnesses, the rule would not have prevented defence counsel from asking the remaining Crown witnesses about N.L.'s participation in the letters. The collateral fact rule is generally understood to prevent contradictory evidence on issues that relate solely to a witness' credibility on a collateral issue: see MacIsaac, at para. 59; Sanderson, at para. 46. In this case, the proposed questions went to more than simply N.L.'s credibility. Evidence that N.L. had participated in the letters had the potential to "debunk" the picture painted by the Crown witnesses that the appellant ran an abusive household from the outset: see Sanderson, at paras. 48, 52; R. v. Prebtani, 2008 ONCA 735, 240 C.C.C. (3d) 237, at paras. 129-130. In this regard, this court's decision in R. v. J.H., 2013 ONCA 693, 110 W.C.B. (2d) 90, does not assist the Crown. In that case, the accused was charged with numerous offences including sexual assault and voyeurism against his ex-spouse. At trial, defence counsel sought to introduce evidence that the complainant had "made or encouraged a false motor vehicle accident report on some other occasion" (para. 3). This court held that that evidence fell within the collateral fact rule. Clearly, unrelated motor vehicle accident reports had nothing to do with the case beyond an attack on the complainant's credibility at large.

[51] Despite all of the above, I am of the view that the improper curtailing of defence counsel's cross-examination of the remaining Crown witnesses did not preclude the defence from putting forward its theory that the household dynamic in the years leading up to the "Father of the Year" award in 2002 were not as bad as N.L.'s allegations made it seem. In Khanna, this court held, at paragraph 11:

Finally, what occurred here was not preclusive of trial counsel's right to cross-examine the complainant about her motives to fabricate her allegations. Cross-examination on the complainant's motives was permitted and pursued, curtailed only in relation to internet postings and chats of negligible assistance in resolving any contested factual issues at trial.

[52] Similarly in R. v. McCallum, 2010 BCCA 587, 93 W.C.B. (2d) 5, leave to appeal refused: [2011] S.C.C.A. No. 96, the British Columbia Court of Appeal held, at paragraph 13:

While evidence of the nature of the relationship between the complainant and the appellant, and of the complainant's other physical altercations and her capacity to inflict harm, may have been relevant to defence counsel's theory regarding the complainant's credibility, I am convinced the trial judge had sufficient information before him regarding these issues such that he did not err in limiting further cross-examination.

[53] Despite the impugned ruling, defence counsel effectively cross-examined N.L., as well as S.L., K.L., and R.C., on the nature of N.L.'s relationship with the appellant in the earlier years, and on the general household dynamic when the appellant first moved in. For example, S.L., K.L., and R.C. all testified that N.L. was very close to the appellant in the beginning, so much so that the family thought N.L. had a "crush" on him. Defence counsel elicited through the sisters and R.C. that there were good times at the start, and that the appellant cared for the girls. And despite alleging that the physical abuse started at the outset of the appellant's time with the family, N.L. herself testified that her relationship with the appellant "started off fairly positive."

[54] Defence counsel also cross-examined the daughters and R.C. extensively on the daughters' decision to stop seeing their biological father in 2002. In his closing address, defence counsel put to the jury:

…by 1998, [R.C.] is living with this man, this man who brings over groceries, who takes care of her daughters while she's at work, a man who ultimately the girls pick over their own father in 2002. It will be for you to determine whether or not the relationship that existed between these girls and this man was as awful as the Crown attorney would ask you to believe, but remember one thing, if it was so abusive, why in 2002 did they decide that they didn't want to see their biological father anymore? You heard them, that was their decision. So if [the accused] was beating them and washing their mouths out with soap, in 2002, they go to the family lawyer and they decide that they don't want to see their biological father anymore who doesn't beat them?

[55] As in Khanna, further cross-examination specifically in relation to whether N.L. participated in the letters would have provided negligible additional assistance to the jury in determining whether the relationships in the house up until 2002 were as bad as N.L. purported them to be. Moreover, although defence counsel lost the chance to attempt to contradict N.L. on her participation in the letters, such a contradiction would also have provided negligible additional assistance to the jury in evaluating N.L.'s credibility. The jury had before it evidence from the other Crown witnesses that undermined N.L.'s account of her relationship with the appellant being poor from the start. Whether she was specifically contradicted on her participation in the letters was unlikely to add much to the jury's evaluation of her credibility.

[56] I would reject this ground of appeal.

(4) The Similar Fact Instruction

[57] At the end of the trial, the Crown successfully applied to treat the three counts of physical assault against the daughters (counts 4 to 6) as cross-count similar fact evidence. The Crown never brought a similar fact application in relation to the sexual offences (counts 1 to 3). During the pre-charge conference, defence counsel requested a clear instruction that the jury could not engage in a similar fact analysis on any counts other than counts 4 to 6.

[58] The trial judge ultimately provided a general instruction about the Crown's burden to prove each count only on the evidence admissible on that count:

Each charge or count requires its own proof. The real issue for you to decide in this case is whether the offence alleged by each complainant ever actually took place. Be careful not to jump to the conclusion that if one complainant is telling the truth, the others must be telling the truth as well. Nor should you jump to the conclusion that because the complainants alleged similar conduct, they all must have occurred if anyone of them is proved. It is up to Crown counsel to prove each charge independently of the others.

[59] The trial judge then specifically turned to the physical assault counts and instructed the jury on similar fact reasoning:

With respect to counts 4, 5 and 6, but not the other counts, you may, but do not have to find that there is a pattern of similar conduct that confirms each complainant's testimony that the offence took place… In deciding whether there is such a pattern and similar conduct, you should consider…the similarities and dissimilarities between the counts.

[60] He then reviewed the similarities and dissimilarities between the daughters' accounts of physical abuse. In doing so, he did not review any evidence related to the sexual offences. At no point did he take the jury through the similarities and dissimilarities between N.L.'s or R.C.'s sexual allegations.

[61] The trial judge concluded his similar fact instruction as follows:

If you conclude there's a pattern and a similar conduct between offences described in Counts 4, 5 and 6 with which [the accused] is charged, you may use the evidence of similar conduct on each charge together with the rest of the evidence relating to that particular charge in reaching your verdict on any other charge.

If you do not or are unable to conclude that the acts charged in Counts 4, 5 and 6 are so similar to those charged in each count that they show a pattern of similar conduct, you must not use the evidence on those charges in reaching your verdict on any other charge.

Whether or not you use the evidence of any complainant to help you decide whether any other complainant is telling the truth, you must not find [the accused] guilty of any offence unless Crown counsel has satisfied you beyond a reasonable doubt that the offence charged actually took place and that [the accused] committed it.

[62] Defence counsel did not object to the charge after it was given to the jury.

[63] The appellant does not dispute that the trial judge properly cautioned the jury against propensity reasoning. But, he submits, the charge was not clear enough that the jury could not engage in cross-count similar fact analysis on the sexual charges (counts 1 to 3). The jury had to be explicitly told that on counts 1 to 3, it could consider only the evidence admissible on each individual count. The appellant submits that this lack of clarity was compounded by the apparent misdirection when the trial judge said that the jury could use the evidence on counts 4 to 6, if they found the allegations were sufficiently similar, "in reaching your verdict on any other charge." This erroneous specific instruction overtook the trial judge's generalized instructions that each charge must be proven on its own admissible evidence.

[64] It is a well-established principle that accused persons are entitled to a properly but not perfectly instructed jury: R. v. Jacquard, [1997] 1 S.C.R. 314. An appellate court must review a jury charge as a whole, and must not take a microscope to isolated passages: R. v. Spence, 2017 ONCA 619, 353 C.C.C. (3d) 446, at para. 42. The review also takes into account other aspects of the trial. As Doherty J.A. stated in R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, affirmed: 2014 SCC 64, [2014] 3 S.C.R. 283, "[t]he question is not how the trial judge went about his or her task, but whether he or she achieved the purpose of the instruction" (para. 35).

[65] The appellant is correct that, in trials of multi-count indictments where there is a successful similar fact application that applies only to certain counts, the jury must be instructed that on those counts not part of the similar fact application, they cannot consider evidence on any other count in coming to a verdict: R. v. J.R.M., 2015 ONCA 229, 121 W.C.B. (2d) 95, at paras. 11-14; R. v. Rarru, [1996] 2 S.C.R. 165. However, reading the jury charge as a whole, I am of the view that the jury would have understood this.

[66] When the trial judge instructed the jury on the permissible use of similar fact reasoning, he clearly stated that his instructions applied "with respect to counts 4, 5 and 6, but not the other counts." In reviewing the similarities and dissimilarities between these counts, the trial judge reviewed only the daughters' accounts of physical abuse and did not reference N.L.'s or R.C.'s sexual allegations. At no point did he take the jury through the similarities and dissimilarities between N.L.'s and R.C.'s sexual allegations.

[67] When viewed in isolation, the trial judge's instruction that if the jury found a similar pattern between counts 4 to 6, they could use the evidence on those charges "in reaching your verdict on any other charge" is problematic. The Crown acknowledges as much, but submits, and I agree, that in the context of the charge as a whole, it is clear that the reference to "any other charge" refers only to counts 4 to 6.

[68] I do not accept the appellant's submission that the trial judge's general instructions were not enough to overcome this isolated passage. The trial judge properly instructed the jury on more than one occasion that the Crown had to prove each charge on its own admissible evidence, and specifically instructed the jury to "be careful not to jump to the conclusion that if one complainant is telling the truth, the others must be telling the truth as well". Additionally, the trial judge provided clear cautions against propensity reasoning. While it may have been preferable, a more explicit instruction that similar fact evidence was not permitted in relation to the sexual allegations was not necessary for the charge to serve its purpose: see R. v. Dawson, 2016 ONCA 880, 343 C.C.C. (3d) 499, at para. 35.

[69] Finally, while not determinative, the fact that defence counsel did not object to the charge after it was given to the jury is some indication that from the defence's perspective, the jury was adequately instructed: R. v. Marshall, 2017 ONCA 1013, 143 W.C.B. (2d) 528, at para. 34.

(5) The Crown's Closing Address

[70] As part of the Crown's disclosure, defence counsel was provided with a will-state for A.B., the school social worker. The will-state indicated that A.B. had met with N.L., but not with any of N.L.'s sisters. In her opening address, the Crown touched on its anticipated evidence and told the jury that they "may also hear" from A.B.

[71] Since the Crown never called A.B., the defence sought a ruling prior to closing addresses that an adverse inference be drawn against the Crown for failing to call her. The Crown objected. After lengthy submissions, the parties agreed that defence counsel could make the following comment to the jury:

The Crown decided not to call [A.B.], and so you did not hear her evidence about meetings, if at all, with [N.L.] or [K.L.]

[72] In her closing address, Crown counsel stated:

You may hear from [the] defence about witnesses the Crown decided not to call, the school social worker, [A.B.] Would hearing from [A.B.] help you in deciding whether [the accused] physically abused his stepdaughters or sexually molested his older stepdaughter? Of course not. She did not live in that house.

[73] Defence counsel objected to this wording, claiming that it went beyond the scope of the parties' agreement. As a result, the trial judge allowed defence counsel to put to the jury the following inference in his closing address:

The Crown attorney mentioned [A.B.] in their opening address. I submit that she wasn't called because the evidence that she was going to give may not have been helpful…

[74] The appellant submits that the Crown went beyond the parties' agreement concerning the Crown's failure to call A.B. and offered a wholesale comment on the helpfulness of what A.B. may have said. Had A.B. testified as anticipated, the inconsistency about whether she met with any of N.L.'s sisters may well have gone to N.L.'s and K.L.'s credibility. Though A.B.'s evidence was not the linchpin of the case, this was a case about credibility and the trial judge should have intervened. Like ground two, the appellant acknowledges that on its own, this alleged error does not warrant a new trial, but submits that it contributed to overall trial unfairness.

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

[76] While Crown counsel was entitled in her closing address to provide an explanation for failing to call A.B., that explanation had to "in ordinary logic and experience, furnish a plausible reason for nonproduction": R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 26. It was not open to the Crown to suggest to the jury that A.B.'s testimony could never have helped them with the issues in the case. As with any trial, what a witness will testify to, while it can be anticipated, can never be known until the witness actually enters the box. A.B. may well have given evidence of some relevance to the case, despite never being inside the family home.

[77] Nevertheless, the accused suffered no prejudice from the Crown's impugned comment. The trial judge permitted defence counsel in his closing to suggest to the jury that the Crown failed to call A.B. because her evidence may have been unhelpful to its case. In my view, that sufficiently dispelled any prejudice.

Disposition

[78] While the trial judge made errors in the course of the trial, for the reasons given above, I am of the view that those errors were not material and did not result in an unfair trial. The appeal is dismissed.

Released: April 5, 2018

"C.W. Hourigan J.A."

"I agree. David Watt J.A."

"I agree. B.W. Miller J.A."