Court of Appeal for Ontario

Date: 2018-10-25 Docket: C63605

Judges: Simmons, Juriansz and Benotto JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Neil Henry Joynt Appellant

Counsel

Howard L. Krongold, for the appellant

Luke Schwalm, for the respondent

Hearing and Appeal Information

Heard: October 23, 2018

On appeal from: The conviction entered on October 27, 2016, and the sentence imposed on April 19, 2017, by Justice R. Scott of the Superior Court of Justice, without a jury.

Appeal Book Endorsement

[1] In our view, in his closing address to the jury, the trial Crown invited the jury to use evidence of prior consistent statements of the complainant, W.H., for the truth of their content. Not only did the trial judge fail to correct this submission by the Crown, he failed to provide the jury with any instructions on the limited use that can be made of the prior consistent statements of the complainants, W.H. and T.E.

[2] In these circumstances, the failure to deliver instructions on the permissible and impermissible use of prior consistent statements is an error in law. Moreover, because the jury was permitted to use the evidence concerning the complainant, W.H., as similar fact evidence in relation to the complainant, T.E., this error taints the conviction in relation to T.E. as well.

[3] We note, in addition, that apart from a cursory review of the similar fact evidence, the trial judge failed to provide the jury with any review whatsoever of the evidence led at trial.

[4] The appeal is allowed, the convictions are set aside, and a new trial is ordered.