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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: May 28, 2019

Docket: C62938

Panel: Pepall, Lauwers and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

D.C. Appellant

Counsel:

• Anil K. Kapoor and Dana Achtemichuk, for the appellant
• Catherine Weiler, for the respondent

Heard: November 19, 2018

On appeal from: The conviction entered on January 20, 2016, by Justice Stephen T. Bale of the Superior Court of Justice, sitting with a jury.

Decision

Pepall J.A.:

Introduction

[1] The appellant was tried before a judge and jury and convicted of three counts of assault with a weapon, one count of aggravated assault and one count of assault. He received a sentence of 4.5 years less 10 months credit for presentence custody.

[2] He initially sought leave to appeal his sentence, but has abandoned that request.

[3] In his appeal against conviction, the appellant submits that the trial was unfair because he was forced to proceed without counsel despite having repeatedly expressed his desire to have counsel represent him. He also submits that the trial judge failed to give proper limiting instructions on the use of the complainant's prior consistent statements and on the treatment of evidence when faced with a multi-count indictment in the absence of a similar fact ruling. As I have concluded that the trial judge erred with respect to the absence of a limiting instruction on the use of the complainant's prior consistent statements, there is no need to address the trial fairness or multi-count indictment grounds of appeal.

Background Facts

[4] The appellant and the complainant began dating in 2001. They moved in together and started a family in Peterborough.

[5] The complainant testified that in 2006, she and the appellant started a cleaning business. This was a stressful endeavour which coincided with frequent abuse, including punching, hitting, and slapping. She stated that the appellant commonly hit her with everyday objects: shoes, an ice scraper, broomsticks, a child's plastic cup, plastic coat hangers, belts, and electrical cords. She described the appellant as a "tyrannical and oppressive partner". The complainant also testified about a choking incident and some general violence that occurred in 2006. According to the complainant, the violence became more frequent in 2007 and continued until their relationship ended in 2013. The appellant was charged with one count of assault covering various incidents from January 1, 2007 to May 8, 2013 (count two on the indictment). He was also charged with two counts of assault with a weapon (counts four and five), to wit assaults with broomsticks and belts, covering incidents from January 1, 2008 to May 8, 2013. He was charged with aggravated assault on account of an incident that occurred between March 20, 2008 and April 3, 2008 (count three). Finally, he was charged with assault with a weapon (count one), to wit electrical cords, in relation to an incident occurring between May 7 to May 8, 2018.

[6] At the appellant's first trial, he was represented by counsel, but a mistrial was declared. At his second trial, the appellant was unrepresented although assisted by counsel who had been appointed pursuant to s. 486.3 for the limited purpose of cross-examining the complainant, which he did for more than two days. Section 486.3 counsel was present for the majority of the 12 day trial.

[7] The appellant did not call any evidence. He was convicted on all counts.

Prior Consistent Statement Evidence

[8] The Crown led evidence of various prior consistent statements of the complainant in support of the prosecution of the appellant. The prior consistent statements in issue consisted of statements made by the complainant to her family doctor, Dr. Auyeung and her mother. The complainant also testified about a prior consistent statement made to her family law lawyer, but this evidence was not led by the Crown.

(a) Dr. Auyeung

[9] The complainant testified that she told Dr. Auyeung that in the summer of 2008 the appellant had punched her in the chest and caused her lung to collapse, hit her with broomsticks, punched her in the head, and slapped her in the face. Dr. Auyeung, the complainant's family doctor, testified that the complainant told her that the appellant had hit the complainant, causing her lung to collapse. This evidence related to count three, the charge of aggravated assault.

[10] Dr. Auyeung also testified that the complainant told her that in the summer of 2008, the appellant had hit the complainant on the back and with broomsticks. This evidence related to counts two and five.

(b) The Complainant's Mother

[11] The complainant testified that she told her mother about her collapsed lung at the time the assault by the appellant occurred. The complainant's mother testified that in the fall of 2008 or winter of 2009, the complainant had told her that the appellant had hit the complainant causing her lung to collapse. This evidence related to count three.

(c) The Complainant's Family Lawyer

[12] The complainant testified in cross-examination that sometime before August 2014, she told her family lawyer that the appellant had forcibly digitally penetrated her rectum on one occasion.[1] This evidence related to count two.

[13] The Crown did not identify the purpose underlying the admission of the prior consistent statements made by the complainant to her family doctor, mother, and family lawyer. Both the basis for admissibility, and use of these statements varied by count. Some of the prior consistent statements may have been admissible as a response to the allegation of recent fabrication. For instance, there was an allegation of recent fabrication to support the admission of Dr. Auyeung's evidence on counts two and five but not on count three. There was also no allegation of recent fabrication to anchor the mother's evidence on count three. There was an allegation of recent fabrication relating to the evidence of the family lawyer on count two. This statement responded to the allegation that the count was motivated and contrived to frustrate the appellant's attempts to seek further access to the parties' children in Family Court proceedings.

[14] Thus, the allegation of recent fabrication applied to certain counts but not all. As the appellant concedes, the prior consistent statements could have been admitted in relation to the other counts as narrative evidence.

[15] There were three key points in the Crown's closing address where the Crown relied on prior consistent statements made by the complainant. First, the Crown asked the jury to find the complainant to be a reliable witness. In this context, the Crown stated that the complainant "remained consistent throughout her evidence", that her injuries were corroborated by witnesses including Dr. Auyeung, and urged the jury to find that she was not exaggerating. The Crown then went on to note:

[The complainant] began to disclose some of the issues she was facing back in 2008 before Family Court started, before Small Claims Court, before she planned to leave [the appellant]. Her testimony in court is consistent with the disclosure she made way back then.

[16] Second, in explaining the disclosure of the abuse by the complainant, the Crown discussed the prior consistent statements made by the complainant to her family doctor:

The first real disclosure occurred with Dr. Auyeung. According to the doctor, [the complainant] told her that [the appellant] had previously hit her in the chest and had caused the collapsed lung. She also said that recently he had hit her in the back, and that she was concerned about the lung. She told Dr. Auyeung that [the appellant] was abusive, and that he hit her with items such as broomsticks. This disclosure occurred in the summer of 2008, and ultimately resulted in the involvement of the Children's Aid Society … there were on-going discussions between Dr. Auyeung and [the complainant] about the abuse.

Finally, counsel went on to ask the jury: "if [the injuries] were caused by an accident, why tell her doctor about domestic abuse in 2008?" This question suggested to the jury that the prior consistent statements to the doctor were true.

[17] The trial judge did not inquire into the basis for the admission of any of this evidence, nor did he give a mid-trial instruction on the permissible or impermissible use of these statements. In addition, the final charge to the jury was silent on the permitted and prohibited uses of this evidence.

[18] The self-represented appellant did not object to the Crown's closing nor did he provide any meaningful input into the content of the trial judge's charge to the jury.

Analysis of Lack of Instruction on Prior Consistent Statements

[19] Prior consistent statements are presumptively inadmissible. They lack probative value as the repetition of the statement is unrelated to the truth of that statement: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Put differently a falsehood does not become true through repetition. If the statements are tendered for the truth of their contents, they are inadmissible hearsay statements.

[20] Traditionally, prior consistent statements may be admitted to rebut an allegation of recent fabrication, for narrative purposes, or as circumstantial evidence: see R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-29, per Hourigan J.A. leave to appeal refused, [2017] S.C.C.A. No. 139; R. v. M.A.J., 2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 46. In Khan, at paras. 58-59, Doherty J.A., in his concurring reasons, described a more principled approach to the admission of prior consistent statements based on relevance, materiality, and probative value of the evidence.

[21] Where a prior consistent statement is determined to be admissible under an exception, it is admitted for a limited purpose: Khan, at para. 27. That purpose is determined by the exception it is admitted under. It is important for a jury to understand what use they may make of evidence of prior consistent statements. Generally, if a prior consistent statement is admitted into evidence in a jury trial, the trial judge is obliged to provide the jury with a limiting instruction: M.A.J., at para. 47; Ellard, at para. 42. As Watt J.A. explained in R. v. T.(J.A.), 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 53, limiting instructions to a jury have three components:

(i) identification of the evidence to which the instruction applies;

(ii) a positive instruction about the use the jury may make of the evidence; and

(iii) a negative instruction on the use the jury must not make of the evidence.

[22] Limiting instructions play an important role in cases involving prior consistent statements given the reasoning dangers associated with these statements, and their limited use. The trier of fact may infer that consistent repetition is evidence of the truthfulness of the statement, and the trier of fact may infer that this repetition corroborates the testimony of the witness. These risks are particularly important to address in jury trials. As the Supreme Court noted in Ellard, "there is a danger that similar prior statements … could appear to be more credible to a jury", and therefore "must be treated with caution" (emphasis in original): at para. 31. Indeed, the admission of prior consistent statements calls out for a limiting instruction because, as Hourigan J.A. observed in Khan, at para. 35, "[t]he line between the permissible and impermissible uses of prior consistent statements is a fine one", and that line varies based on the purpose for which the statement is admitted: see also R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 79.

[23] Here, the trial judge failed to articulate the basis upon which the prior consistent statements were admissible, and failed to give any limiting instruction. Even assuming that the statements were admissible, he ought to have instructed the jury on their prohibited and permissible uses which differed from count to count.

[24] However, the failure to give a limiting instruction is not always fatal. For example, where a prior consistent statement is admitted for a purpose where there is little likelihood of improper use by the jury, a limiting instruction may be unnecessary and confusing: R. v. Demetrius, 179 C.C.C. (3d) 26, at para. 21. The trial judge's instructions to the jury must be assessed "in the context of the particular case on a functional basis": Demetrius, at para. 21; M.A.J., at para. 47; M.P., at para. 80. It must be determined, based on the circumstances of the case and the particular risks presented by the evidence in that case, whether the trial judge's instructions "adequately prepared the jury to properly assess the evidence": R. v. O.(L.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 39-40; Ellard, at para. 48.

[25] In this case, the failure of the trial judge to provide a limiting instruction was a fatal error. The evidence of the prior consistent statements was elicited from three witnesses and included substantive details of abuse. Many of these details mirrored the testimony given by the complainant at trial. In these circumstances, there was a real risk that the jury would improperly use the statements to serve as corroboration or confirmation of the complainant's testimony. This risk was heightened given that the trial judge failed to give a standard instruction directing the jury that prior consistent statements may not be used for the truth of their contents, or as evidence that what was said actually happened: see David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pp. 419-420 (Final 35-D – Prior Consistent Statements of Non-Accused Witness). The Crown's address to the jury opened the door for the jury to accept the prior consistent statements, particularly those made to Dr. Auyeung, for the truth of their contents. It was incumbent on the trial judge to clarify that such a use was impermissible.

[26] The Crown points to one portion of the trial judge's instruction as "clearly enjoin[ing] the prohibited use" of the statements. Under the heading of "Prior Inconsistent Statements of Non-Accused Witness", the trial judge instructed the jury as follows:

Generally, the earlier statement may be used only in assessing the witness's credibility. However, there is an exception when the witness, while testifying at trial, accepts all or part of the earlier statement as true. In that event, the earlier statement may also be considered as evidence of what happened, but only to the extent the witness accepted it as true. It is for you to decide what weight, if any, to give to the part of the earlier statement that the witness accepts as true.

This instruction follows the model instruction set out in Watt's Manual of Criminal Jury Instructions, for the use of prior inconsistent statements: see pp. 325-326 (Final 25-A – Prior Inconsistent Statements of Non-Accused Witness (Impeachment and Credibility Only)). However, the same instruction is not applicable to the use of prior consistent statements, nor is it capable of remedying a lack of instruction on the prohibited uses of prior consistent statements. Rather this instruction, absent a limiting instruction related to prior consistent statements, was capable of misleading the jury.

[27] Further, the Crown in its closing address to the jury invited the jury to infer credibility from consistency. As the trial judge highlighted in his charge to the jury, "credibility [was] a central issue in this case." This court noted in R. v. Austin, 214 C.C.C. (3d) 38, that where credibility is an important issue at trial, the trial judge is obliged to impart to the jury that "the existence of a prior consistent statement cannot in and of itself enhance the credibility" of the witness: at para. 33. This is explained at para. 37 of R. v. B.(D.), 2013 ONCA 578, 310 O.A.C. 294, in the context of rebutting an allegation of recent fabrication and is instructive:

A prior consistent statement that is admissible to rebut an allegation of recent fabrication is not admitted to prove the truth of its contents. Rather, it neutralizes the challenge or allegation of recent fabrication. The evidence of the prior consistent statement is used to establish that the challenge is in error, not to show that the statement is true or that the witness is likely telling the truth because they said the same thing before. In this sense, the admission of the prior consistent statement may impact positively on the witness's credibility insofar as admission of the statement removes a motive of fabrication. [Emphasis added.]

[28] Left only with the Crown's statements on the matter, the jury was invited to infer truthfulness from consistency, and there was a real risk that the statements would be viewed by the jury as capable of affirmatively adding to the complainant's credibility, rather than simply countering the challenges to her credibility.

[29] The dangers associated with prior consistent statements were squarely engaged by the statements admitted in this case, where the credibility of the complainant was central. The trial judge's instructions to the jury did not elude to, let alone enumerate, these dangers. The jury was not equipped to understand the basis for which the statements were admitted, and the trial judge's instructions failed to prepare the jury to properly assess the evidence. Accordingly, the absence of a limiting instruction on the use of the prior consistent statements was fatal in the circumstances of this case.

Disposition

[30] For these reasons, the appeal is allowed, the conviction is set aside, and a new trial is ordered.

Released: May 28, 2019

"S.E. Pepall J.A."

"I agree. P. Lauwers J.A."

"I agree. David M. Paciocco J.A."

[1] The family lawyer was not called as a witness.