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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-02-20

Docket: C60818

Judges: Simmons, Lauwers and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

W.D. Appellant

Counsel

Nader R. Hasan, for the appellant under a limited order under s. 684 of the Criminal Code

W.D., appearing in person

Holly Loubert, for the respondent

Heard

January 17, 2019

Appeal

On appeal from the conviction entered by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury, on March 9, 2015, and the sentence imposed on July 3, 2015.

Reasons for Decision

[1] Following a jury trial, the appellant was convicted of sexual assault and sexual assault with a weapon, but acquitted of three counts of uttering threats and one count of assault. All charges involved the same complainant, the appellant's former common law spouse. The appellant was sentenced to a total of 22 months' less one day of imprisonment plus two years' probation. He appeals against the convictions and seeks leave to appeal sentence.

[2] The appellant was self-represented at trial. Through counsel appointed under s. 684 of the Criminal Code, RSC 1985, c C-46, he raises two issues on his conviction appeal. In addition, he advances one issue on his own behalf.

[3] The two issues raised by counsel are the following:

i) particularly because of the multi-count indictment, the evidence of extrinsic discreditable conduct introduced at trial and the trial Crown's references to the extrinsic discreditable conduct in her closing address, the trial judge erred by failing to direct the jury not to apply the evidence across counts and by failing to provide a specific caution against the dangers of propensity reasoning; and

ii) the trial judge erred by failing to provide the jury with meaningful guidance about assessing credibility.

[4] We allow the conviction appeal based on the second issue raised by counsel. Before turning to that issue, we briefly explain why we would not give effect to the first issue raised by counsel. In light of our conclusion on the second issue, it is unnecessary that we deal with the additional issue raised by the appellant on the sentence appeal.

(1) Did the Trial Judge Err in Her Instructions Regarding Use of Evidence Across Counts or in Failing to Caution the Jury Specifically Against Propensity Reasoning?

[5] Concerning the first issue, we do not accept counsel's submissions. Although this case involved a multi-count indictment, the charges related to a single complainant, the appellant's former common law spouse. Given the nature of the evidence led at trial, an instruction prohibiting entirely the use of evidence across counts would not have been appropriate. For example, some of the evidence on the nature of the parties' relationship was potentially probative of animus or motive and was admissible across counts. Accordingly, in this case, the following instruction given by the trial judge concerning the use of evidence across counts was adequate:

… there are six alleged offences. Each allegation is a separate charge. You must make a separate decision and give a separate verdict for each of the six charges. You must make your decision on each charge only on the basis of evidence that relates to that charge.

Now, [the appellant] is presumed innocent on each of those six charges. You must consider each charge separately and return a separate verdict, as I said based only on the evidence and the legal principles that I will tell you about. Your verdicts on each charge, so each of the six, they may be the same on each of the six, or for example you may find [the appellant] not guilty on each of the six counts. You may have [sic] find him guilty on one of the six counts, and so on… [Emphasis added.]

[6] The absence of an instruction cautioning against misuse of discreditable conduct evidence is not fatal either. Much of the evidence of extrinsic discreditable conduct was led by the appellant himself in support of his theory that the complainant had bipolar disorder, was inadequately medicated, and, as a result, was an unreliable historian who blew minor events out of all proportion. Overall, the discreditable conduct evidence (meaning both the evidence relating to the counts of which the appellant was acquitted and the evidence of extrinsic discreditable conduct) related to relatively minor misconduct as compared to the more serious sexual assault allegations for which the appellant was convicted. As we have said, the jury acquitted the appellant of four of the six charges he faced. Further, as we read the Crown's closing address, she did not invite any misuse of the discreditable conduct evidence but rather restricted her submissions to asking the jury to draw adverse inferences about the appellant's credibility. Given all these circumstances, we are not persuaded that the jury was misled into improper propensity reasoning in this case or that the failure to give a discreditable conduct caution constituted reversible error.

(2) Did the Trial Judge Err by Failing to Provide the Jury with Meaningful Guidance About Assessing Credibility?

[7] We conclude that the trial judge committed reversible error by failing to give the jury more complete instructions about assessing credibility and prior inconsistent statements.

[8] In this regard, we note certain frailties in the complainant's evidence that were not properly addressed. For example, the complainant agreed during cross-examination that she made a false statement in an affidavit she swore for use in a family law proceeding when she said the appellant got along well with her children. More importantly, there was evidence before the jury that, during her initial police interview, the complainant advised the police that she had not been sexually abused.

[9] In particular, evidence was led that, during her initial police interview on November 8, 2013, not only did the complainant not mention her sexual assault allegations but she responded in the negative to an inquiry put by an officer completing a standard questionnaire concerning whether the appellant had ever sexually abused her. Evidence was also led that on December 9, 2013, after the appellant had served her with a family law motion, the complainant returned to the police station, responded positively to the same questionnaire inquiry, and made the sexual assault allegations that led to the charges forming the subject matter of this appeal.

[10] Despite these issues concerning the complainant's credibility, the trial judge did not give the standard general instructions set out in specimen jury charges about assessing credibility. The instructions would have focused the jury's attention on potential credibility issues – such as prior inconsistent statements or false statements made under oath.

[11] The only general instruction the trial judge gave about assessing credibility was to tell the jury to use their common sense:

Now when you go to your jury room to consider the case use the same common sense that you use in everyday life in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little you believe of the witness' testimony or how much to rely on it in deciding this case, use your common sense. [Emphasis added.]

[12] This instruction essentially mirrors one paragraph of the "assessment of evidence" instruction set out in David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 267. It did not include any of the further instructions generally given that are designed to focus the jury's attention on particular problems with the evidence in the case. For example, the following questions set out in the "assessment of evidence" instruction in Watt's Manual, at pp. 267-68, would have been particularly relevant in this case:

Did the witness seem honest? Is there any reason why the witness would not be telling the truth?...

Did the witness's testimony seem reasonable and consistent as s/he gave it? … Did the witness say or do something different on an earlier occasion?

Do any inconsistencies in the witness's evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? A deliberate lie is always serious and may taint all the witness' evidence. Is the inconsistency because the witness said something different, or because s/he failed to mention something? Is there any explanation for it? Does the explanation make sense?

[13] The trial judge gave no general instructions addressing the significance of a false statement made under oath or prior inconsistent statements. She mentioned the complainant's evidence acknowledging that the complainant had sworn an affidavit containing a false statement only when setting out the appellant's theory of the case:

Further, [the appellant] reminds you that [the complainant], on a previous occasion, swore a false affidavit in regards to a Family Law Act matter and should be treated as an incredible witness.

[14] The trial judge addressed the evolving nature of the complainant's allegations solely through the lens of the appellant's argument that the complainant had a motive to fabricate. The trial judge did so initially when addressing the issue of motive and explaining that the appellant alleged the complainant had a motive to fabricate. As part of this instruction, the trial judge explained that on December 9, the complainant made "a more fulsome allegation of a number of incidents that she alleges has occurred." The trial judge said:

But in assessing whether there was a motive to fabricate, I would ask you to consider those items together with the fact that she first went to the police on November 8th, 2013 and she made a complaint of a couple of incidents, and you will have the report there. And then the evidence was that she became aware by November 18th that [the appellant] initiated some Family Law proceedings in relation to [the couple's son], and then December 9 she goes back to the police and makes a more fulsome allegation of a number of incidents that she alleges occurred. [Emphasis added.]

[15] Subsequently, when addressing the appellant's theory of the case, the trial judge noted that the complainant made "an expanded complainant" on December 9:

[The appellant] also wants to remind you that November 8th when [the complainant] went to the police she told the police a very abbreviated version of the allegations which she testified to before you, that she became aware of the Family Law proceedings…November 18, 2013, and then went to the police a further time on December 9 and reported an expanded complaint which results in the Indictment before this court.

[16] These instructions describe an evolving complaint. What they fail to do is put front and centre before the jury the fact that there was evidence before them that, in her initial interview with the police, the complainant not only failed to mention the sexual assault allegations, but denied any sexual abuse by the appellant.

[17] In failing to mention the evidence of the complainant's prior inconsistent statement and in failing to equip the jury with the tools to assess that evidence, either by way of general instructions on assessing the evidence or by general instructions on prior inconsistent statements, the trial judge committed reversible error. The inconsistency in the complainant's reporting went to the heart of the complainant's allegations of sexual assault.

[18] While this inconsistency in reporting may have been a secondary aspect of the appellant's position, nonetheless, he put the inconsistency in reporting to the complainant as part of his cross-examination. During cross-examination, the appellant suggested to the complainant that, in her initial interview with the police on November 8, 2013, she responded no to a question by the interviewing officer about whether the appellant had ever sexually abused her. The complainant denied the suggestion. She explained that she was very upset the first time she went to the police station. She said, "If I answered no, I probably thought he asked another question."

[19] Although the appellant failed to have the interviewing officer read into the record the question and answer that gave rise to the inconsistency, the inconsistent question and answer formed part of the record and should have been drawn to the jury's attention[1]. Particularly as a self-represented litigant, the appellant was entitled to have his position put fully and fairly before the jury.

[20] We acknowledge that the complainant did not recall making the inconsistent statement and said if she did, she must have misunderstood the question. However, the interviewing officer testified he went over the questionnaire inquiries carefully with the complainant and had her initial each page of the November 8 handwritten version of the questionnaire. It was up to the jury to decide whether the complainant made the inconsistent statement and if she did, what, if any, impact that should have on her credibility. However, the jury was not equipped with the proper tools to address these issues.

[21] In oral submissions on the appeal, the Crown argued that if we accepted the appellant's submission on this ground, we should rely on the proviso in s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal. We reject that submission. As we have said, the failure to instruct the jury concerning the evidence of a prior inconsistent statement by the complainant went to the heart of the complainant's allegations of sexual assault. As such, the non-direction was not a minor error – it related to the core of the allegations of which the appellant was convicted. Further, the Crown's case on the sexual assault charges was not overwhelming. It depended solely on the testimony of the complainant, which was disputed by the testimony of the appellant.

Disposition

[22] Based on the foregoing reasons, the appeal is allowed, the convictions are set aside and a new trial is ordered on the sexual assault and sexual assault with a weapon charges.

"Janet Simmons J.A."

"P. Lauwers J.A."

"G.T. Trotter J.A."

Footnote

[1] In examination-in-chief by the Crown, the police officer who interviewed the complainant testified that he filled out a Domestic Violence Supplementary Report ("DVSR") with her both on November 8, 2013 and on December 9, 2013. He explained that initially he completed each DVSR in his handwriting and later input the information into a computer to produce a typed report. He confirmed it was his practice to fill out DVSRs in handwriting with a complainant, have her review it, make any necessary changes, and then sign it. He produced the handwritten DVSRs he filled out with the complainant on November 8, 2013 and December 9, 2013 as well as the typed reports he generated for both dates. He testified that the complainant signed each page of the November 8, 2013 handwritten DVSR but not the December 9, 2013 handwritten DVSR. In cross-examination by the appellant, the interviewing officer confirmed he always ensured complainants understood the questions in the DVSRs and had an opportunity to think about their answers. The appellant did not ask the police officer to read into the record the question and answer from the November 8, 2013 DVSR in which the complainant denied sexual abuse by the appellant. However, at the appellant's request, the typed DVSRs were entered as exhibits. During examination-in-chief, the Crown had clarified one transposition error as between the handwritten and typed versions of the November 8, 2013 DVSRs (the age of the child accompanying her was misstated as two instead of three). The Crown did not object to the typed versions of the DVSRs being entered as exhibits. As we have said, the interviewing officer testified that the complainant signed each page of the handwritten November 8, 2013 DVSR. In our view, the questions asked and answers recorded on the November 8, 2013 DVSR thus became part of the record for the purpose of demonstrating any prior inconsistent statement.