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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: November 14, 2019
Docket: C61064
Panel: Strathy C.J.O., Watt and Zarnett JJ.A.
Parties
Between
Her Majesty the Queen
Respondent
and
T.C.
Appellant
Counsel
For the Appellant: Michael Davies and Meaghan McMahon
For the Respondent: Frank Au
Hearing
Heard: May 28, 2019
On appeal from: The convictions entered by Justice Martin S. James of the Superior Court of Justice, sitting with a jury, on September 10, 2014.
Decision
Zarnett J.A.:
I. INTRODUCTION
[1] The appellant was convicted by a jury of committing six sexual offences, five relating to his grandniece A.D. and one relating to his grandniece A.S.
[2] A.D. was under ten years old at the time of the offences that related to her; A.S. was under thirteen at the time of the offence that related to her. At the time of trial, A.D. was fourteen and A.S. was sixteen.
[3] The appellant appeals his convictions, advancing three grounds. The first pertains to the admission of evidence across counts as similar fact evidence, and the trial judge's instruction to the jury on the use to be made of such evidence; the second to the trial judge's ruling about the appellant's ability to refer to various documents to assist his memory while testifying; and the third to language the trial judge used to refer to the appellant while instructing the jury.
[4] For the reasons that follow, I would dismiss the appeal.
II. FACTUAL AND PROCEDURAL HISTORY GIVING RISE TO THE ISSUES ON APPEAL
A. The Pre-Trial Conference Similar Fact Evidence Discussion
[5] Following a preliminary inquiry in the Ontario Court of Justice, the appellant was ordered to stand trial on an indictment which alleged eight offences.
[6] The appellant had not been represented by counsel at his preliminary inquiry. A lawyer, Peter Boushy, had been appointed under s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46, as counsel to cross-examine the complainants at the preliminary inquiry.
[7] After the appellant was ordered to stand trial, a pre-trial conference was conducted in the Superior Court of Justice by Ray J. The appellant remained self-represented at the pre-trial conference, as he was throughout trial.
[8] At the outset of the pre-trial conference, Mr. Boushy applied, with the consent of the Crown, to be appointed amicus curiae at the trial. Although certain matters were discussed at the pre-trial conference in advance of Ray J.'s actual ruling on the request to appoint amicus, he did rule on the request before the pre-trial conference concluded. Ray J. appointed Mr. Boushy as amicus to, among other things, receive all relevant Crown disclosure on behalf of the appellant; inform the appellant about points of law and legal issues; discuss legal issues with the Crown on behalf of the appellant; speak to legal issues in court; and provide any other assistance to the court it might approve including to cross-examine the complainants and other witnesses.
[9] One of the matters discussed at the pre-trial conference before the order was made actually appointing Mr. Boushy as amicus, was the issue of similar fact evidence. Crown counsel requested that the evidence on each count in the indictment be used "as similar fact evidence across the counts".
[10] Mr. Boushy advised the court that that was agreeable, pending conversations he intended to have with the appellant. He further advised that if as a result of the conversations the position changed, "there'll be ample notice to the Crown attorney's office, prior to the jury trial…". As Ray J. put it, "[y]ou're agreeable until we hear differently".
[11] No notice of a different position was provided prior to the trial, which commenced approximately six months after the pre-trial conference. The issue of similar fact evidence was next discussed at the pre-charge conference, after the conclusion of the evidence at trial.
B. The Complainants' Evidence at Trial
[12] A.D. and A.S are cousins. The appellant is their great uncle. Through the family connection, the appellant was from time to time in the company of A.D., or A.S., or both.
[13] A.D. and A.S. both gave evidence. I summarize first the evidence of A.D. that describes the substance of the alleged offences on which she was the complainant, then the evidence of A.S. about the offences alleged to have been committed against her, and then the evidence A.D. and A.S. each gave on the counts on which the other was the complainant.
(i) Charges Relating to A.D.
[14] Count 1 on the indictment alleged sexual interference contrary to s. 151(a) of the Code. A.D. testified that when she was about six years old, the appellant, while visiting her home, put his hand down her shirt and touched her breast when they were sitting on a couch together.
[15] Count 2 alleged sexual assault contrary to s. 271 of the Code. A.D. testified that it occurred when she was six to seven years old, most likely in her bedroom at her home. A.D. gave evidence that she undressed with the appellant and lay on a bed with the appellant on top of her. She recalled a "little bit of pain…like a stabbing pain" between her legs. The appellant then got off the bed, dressed himself and told her not to tell anyone.
[16] Count 3 alleged invitation to sexual touching contrary to s. 152 of the Code. A.D. testified that it occurred when she was around nine years old, when her family was moving to a new home and the appellant was helping with the move. A.D. was playing a game pretending that her room was a spa. The appellant played along, got undressed in the "spa", and proposed that A.D. give him a massage. He lay down on A.D.'s bed on his stomach, undressed except for a towel draped over his middle section covering his buttocks. As A.D. massaged the appellant's shoulders, the appellant told her she could go lower. When she was massaging the appellant's hip area, he told her not to be afraid to touch anything and she could massage anywhere she wanted. A.D. took this to mean, in her words, "his butt". A.D. refused.
[17] Count 7 alleged sexual interference contrary to s. 151(a) of the Code. A.D. testified it occurred when she was eight or nine years old, when A.S. and she were staying with another family member during the summer. A.D. and A.S. were in a bathroom adjusting the tops of their bathing suits. The appellant walked in and offered to help A.D. The appellant put both of his hands on her breasts.
[18] Count 8 alleged sexual assault contrary to s. 271 of the Code. A.D. testified it also occurred while A.D. and A.S. were staying with that family member for the summer. A.D. and A.S. were in a bedroom putting on t-shirts over their bathing suits when the appellant entered the room and tackled A.D., pushing her on to the bed. The appellant pinned A.D.'s arms over her head by gripping her wrists, licked her face, moved his "front boy private part" between her legs, and rubbed against her. Both A.D. and the appellant were fully clothed.
(ii) Charges Relating to A.S.
[19] Count 4 alleged invitation to sexual touching contrary to s. 152 of the Code. A.S. testified that it occurred at A.D.'s home when the appellant was babysitting both A.D. and A.S., and they were all in the kitchen. A.S. asked for something to eat, but the appellant told the complainants that they would not be allowed to eat anything unless they pinched "his bum" which they did.
[20] Count 5 alleged invitation to sexual touching contrary to s. 152 of the Code, involving three alleged incidents.
[21] The first incident occurred on the same occasion as the incident A.D. described in relation to count 7. A.S. was ten or eleven years old. A.S. testified that when A.D. and she were in the bathroom adjusting the tops of their bathing suits, the appellant walked in and adjusted A.S.'s top in a way that made her breasts show. In doing so, the appellant touched A.S.'s breasts with his hand.
[22] The second incident took place when the appellant and complainants were swimming at a beach. A.S. testified that the appellant touched her buttocks area while he was helping her with a surfboard.
[23] The third incident occurred on an occasion when A.S. was sitting on the appellant's lap on the porch of a family member's residence. A.S. was ten or eleven years old. A.S. testified that the appellant put his hand on her upper thigh and rubbed her leg from her knee to her hip, up and down.
[24] Count 6 alleged sexual assault contrary to s. 271 of the Code based on the same three incidents as count 5.
(iii) The Complainants' Evidence About the Other's Complaints
[25] A.D. and A.S. also gave evidence that they witnessed specific events that supported certain of the other's complaints.
[26] On count 3, A.S. gave evidence that she had been helping A.D. with pretending to run a spa and left when she tired of the game, leaving A.D. and the appellant alone. On the second allegation of count 5, A.D. testified remembering an incident of the appellant throwing A.S. off a surfboard and touching her butt when the three were at a beach. On count 7 and on the first allegation of count 5, which allegedly occurred on the same occasion, both A.D. and A.S gave evidence describing what occurred. On count 8, A.S. testified that the appellant moved his hips up and down on top of A.D.
C. Appellant's Evidence and the Trial Judge's Aide Mémoire Ruling
[27] The appellant called one witness and then testified in his own defence. Prior to testifying, the appellant made the decision that amicus would lead him through his evidence and would address the jury in the closing arguments.
[28] The appellant asked the trial judge if he could, in order to refresh his memory while testifying, refer to portions of the Crown disclosure and some notes. Mr. Boushy, as amicus, advised the court that he did not see a need for the appellant to do so given the appellant's history with the litigation, his pre-trial preparations, and the fact that amicus would be leading the appellant through his testimony. He also expressed concern that the appellant might, in doing so, refer to the complainants' statements that were part of the Crown's disclosure, rather than "simply testify as to what happened as I lead him to the particular events."
[29] The trial judge agreed with amicus, finding that it would be inappropriate for the appellant to refer to these documents because the appellant would have the benefit of amicus leading him through his examination-in-chief reducing the need for an aide mémoire to jog the appellant's recollection of the different topics he wanted to talk about.
[30] The appellant then gave evidence. He denied all the allegations and stated that he shared a playful relationship with the complainants. He testified that he never put his hand down A.D.'s shirt and touched her breasts; never had sexual intercourse with A.D.; never had been massaged by A.D. or offered to give A.D. a massage; and never babysat A.D. or A.S. The appellant offered an alternative description of the other incidents, testifying that they had not occurred as alleged and, to the extent they involved any contact or touching, it had been initiated by the complainants, and in any event, occurred in non-sexual circumstances and without any sexual purpose.
[31] At the conclusion of the appellant's examination-in-chief, he was afforded an opportunity to refer to his notes to add anything to his testimony that he felt was relevant to the trial. After reviewing his notes, the appellant stated he had nothing to add. He was then cross-examined by the Crown and re-examined by amicus. At the conclusion of his testimony, amicus asked the appellant if that was all the evidence he wished to call in defence. The appellant said that it was.
D. The Jury Charge Regarding Similar Fact Evidence
[32] The trial judge conducted a pre-charge conference, and sought input on the manner in which the jury would be instructed on the use of similar fact evidence across counts. Amicus acknowledged there had not been an objection communicated about the use of similar fact evidence after the Crown had raised this issue at the pre-trial conference, but stated that the trial judge was the "ultimate gate keeper". During discussion concerning what the jury would be told about what acts were similar, various views were expressed on the similarity issue. Crown counsel stated that the "act of intercourse would be excluded…because it's not similar to anything else", an apparent reference to count 2. The trial judge noted that what he called the "bikini" incident (an apparent reference to count 7 and the first allegation of count 5) was "qualitatively different". After further discussion it was agreed that an example would be usefully included in the jury instruction. A similar fact evidence instruction was settled upon to which the Crown and amicus expressed agreement. The appellant was provided an opportunity to himself comment on the charge before it was delivered; other than grammatical edits, he expressed no objection.
[33] The similar fact instruction given was as follows:
[Mr. C] is charged with eight offences. There are two complainants. Each charge requires its own proof. The real issue for you to decide in this case is whether the offences 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 any one of them is proved. It is up to Crown counsel to prove each charge independently of the others.
You may, but you do not have to find that there is a pattern of similar conduct that confirms each complainant's testimony that the offences took place. It is for you to say.
In considering this evidence, bear in mind the relationship between [Mr. C], the complainants, as well as the circumstances of both of the situations.
In deciding whether there is such a pattern of similar conduct, you should consider this example. Recall that there was an allegation that [Mr. C] invited the girls to pinch his buttocks to get their lunch or a snack when they were hungry. Also, [A.D.] said that [Mr. C] invited her to massage his buttocks in the spa incident. Both of these events, if true, involved an invitation by [Mr. C] to touch his buttocks.
If you conclude that there is a pattern of similar conduct between or among any offences with which [Mr. C] is charged, you may use that evidence of similar conduct on each charge together with the rest of the evidence relating to that charge in reaching your verdict on any other charge.
If you conclude that [Mr. C] did the acts alleged on any offence charged, you must not use the evidence of that conduct to conclude or to help you conclude that [Mr. C] is a person of general bad character or disposition who likely committed the acts charged in any other count because of that bad character or disposition.
Further, if you conclude that [Mr. C] did the acts alleged in any offence charged, you must not punish [Mr. C] by finding him guilty of any other offence simply because he did those other acts.
If you do not, or are unable to conclude that the acts charged in some counts are so similar to those charged in others 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 [Mr. C] guilty of any offence unless Crown counsel has satisfied you beyond a reasonable doubt that the offence charged actually took place and that [Mr. C] committed it.
E. The Trial Judge's References to The Appellant During the Jury Charge
[34] During his charge to the jury, the trial judge twice referred to the appellant as "Mr. Guilty".
[35] The first instance occurred while the trial judge was reviewing the law related to assessing the testimony of the two complainants. He said:
Both complainants testified from outside the courtroom and had a support person present with them when they testified. This procedure is designed to help young people give evidence but by providing more comfortable surroundings to do so. This procedure has nothing to do with the guilt or innocence of [Mr. C]. You must not draw any inference of any kind from its use. To be more specific, do not use it to conclude that Mr. Guilty (sic) – [Mr. C] is guilty of the offences charged.
[36] The trial judge again referred to the appellant as "Mr. Guilty" while reviewing the law and evidence relating to count 3:
If you are satisfied beyond a reasonable doubt that the touching that [Mr. C] invited [A.D.] to do was for a sexual purpose, you must find Mr. Guilty (sic) – [Mr. C] guilty of invitation to sexual touching.
[37] Following a break in the charge, amicus applied for a mistrial, and alternatively, for a correcting jury instruction. The trial judge dismissed the application for a mistrial, but gave the following corrective instruction to the jury:
And we're now going to carry on with my final instructions, picking up with Count 6.
However, before I do that, you probably noticed that on one, maybe two occasions while I was reading too quickly in a spot on a line where [Mr. C's] name appeared with the word "guilty" I said Mr. Guilty instead of [Mr. C]. This was obviously an inadvertent error on – a mistake on my part and it would be wrong to draw any inference or conclusion from my slip.
So thank you. I'll try not to read as quickly. We still have a fairs way to go. And now I'm going to carry on, as I indicated, with a discussion of Count 6.
F. The Result at Trial
[38] The jury convicted the appellant on six counts: all of the counts that related to A.D., and count 5 which related to A.S. The appellant was acquitted on counts 4 and 6.
III. ANALYSIS
A. The Similar Fact Evidence Ground of Appeal
(i) The Parties' Positions
[39] The appellant argues that the trial judge erred in admitting evidence across counts as similar fact evidence and in the instruction he gave the jury about its use. He points to the absence of a formal application by the Crown to admit evidence across counts – one that defined the purpose for which the evidence was to be admitted, the issue to which it was relevant, and the inference it was said to support. He argues that discussions at the pre-trial and pre-charge conferences did not overcome this deficiency. The appellant was self-represented and was not expressly canvassed for his views; some of the discussions took place before Mr. Boushy was even appointed amicus, and in any event, amicus is not defence counsel.
[40] The appellant further argues that the discussions at the pre-charge conference resulted in a number of agreements among the Crown, amicus, and the trial judge that certain counts did not involve acts that were similar to those involved in other counts. He says those agreements should have resulted in an instruction that evidence on those counts could not be used on other counts, together with a warning against engaging in propensity reasoning arising from that evidence: R. v. Dawson, 2016 ONCA 880, 343 C.C.C. (3d) 499, at paras 22-27. But those agreements were not reflected in the charge itself, which only provided an example of counts that might be similar and left it to the jury to decide whether to consider all counts as similar, leaving them free to apply all the evidence on all the counts.
[41] The Crown submits that each of the complainants was a witness on counts that pertained to the other, and their credibility was a central issue in the case. It was necessary for the jury to consider the totality of the evidence on each count to decide this issue, even if similar facts were not involved. Moreover, the Crown argues that it made a sufficient request for evidence on each count to be admitted as similar fact evidence on each other count, to which there was no objection. The evidence was properly admissible as similar fact evidence on each count. There was only one agreement reached at the pre-charge conference, and that was that the wording of the final charge to the jury was appropriate.
(ii) Discussion
[42] The presumptive rule is that evidence on one count of an indictment may not be used to prove the guilt of the accused on another count where the counts do not arise out of the same events: R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 48; R. v. Tsigirlash, 2019 ONCA 650, at para. 23. This is an aspect of what is commonly referred to as the rule against similar fact evidence.
[43] The rule exists to prevent prejudice to the accused, including that arising from a jury reasoning that a person who has engaged in disreputable conduct alleged in one count has a propensity or disposition to do the type of act charged in another count: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31.
[44] Where the presumptive rule applies, such that evidence on one count is not admissible on another, a particular jury instruction is warranted. As this court said in Dawson, at paras 25-26:
[25] … three related points must be brought home to the jury to counter the prejudice inherent in a multi-count indictment. … the second two are really just examples of the first. The first is that only the evidence admissible with respect to the particular count can be considered when determining guilt or innocence on that count (the instruction to keep the evidence relating to each count separate). The second is that a finding of guilt on one count is not evidence of guilt on another. And the third is that evidence of discreditable conduct or criminal acts cannot be used to reason that the accused is the type of person who would have committed any of the offences (the propensity reasoning instruction).
[26] The fact that the second two are actually examples of the first critical instruction – that the jury must keep the evidence on each count separate – means that failure to give a propensity warning is not always fatal. Rather, the court may tailor the charge in a particular case to suit the circumstances of that case. [Internal citations omitted]
[45] The presumptive inadmissibility rule does not apply to credibility assessments of witnesses who have testified to facts admissible on more than one count. "The verdict on each count of an indictment must, of course, be based on evidence admissible with respect to that count; in assessing the credibility of each witness, including the accused, the trial judge was entitled, however, to consider the totality of the evidence given by that witness": R. v. P.E.C., 2005 SCC 19, [2005] 1 S.C.R. 290, at p. 291.
[46] The Crown relies on P.E.C. to argue that the credibility issues here — the appellant's attack on the credibility of the complainants, the need for the jury to consider the totality of their evidence to assess their credibility, and the need for the appellant's credibility to be assessed on the totality of his evidence on all the counts – made the across count evidence admissible "entirely apart from any similar fact considerations". I do not accept that argument as a complete answer to the appellant's complaint.
[47] Using the totality of the evidence to assess the credibility of a witness does not make the evidence on one count admissible on other counts; it does not permit the evidence to be used to support what would otherwise be a "prohibited line of reasoning contrary to the rule against similar fact evidence": P.E.C., at p. 291. Here, the appellant's complaint is that the trial judge instructed the jury that, if they found counts to be similar, they could consider evidence on one count in support of the proof of guilt of the appellant on other counts. This goes beyond its use for assessing credibility to a use that would only be permitted if the evidence were actually admissible on each count.
[48] Evidence on one count can be admissible on another if it meets the test for the admission of similar fact evidence, thus displacing, for that evidence, the presumptive inadmissibility rule. The test for admission of similar fact evidence involves considering whether the probative value of the evidence on a particular issue outweighs its prejudicial effect, thus justifying its reception: Handy, at para. 55. If the test is met, the evidence may be admitted to support a factual contention or inference advanced by the Crown, including that it shows a specific propensity of the accused to do the act charged: Handy, at paras 59-68.
[49] The test is not met if the evidence does no more than show bad character or a "mere" or "general" propensity to engage in discreditable conduct such as a general disposition to criminal behaviour. Such evidence has little or no cogency on the issue whether specific criminal behaviour alleged in a specific charge occurred on the specific occasion alleged, let alone sufficient cogency to outweigh the significant prejudice it could cause: Handy, at paras. 71-72.
[50] However, the test may be met where the evidence shows a "particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it … so long as it has some specific connection with or relation to the issues for decision in the subject case": Handy, at para. 92. This may be true of "situation specific behaviour", or an "observed pattern of propensity operating in a closely defined and circumscribed context", or "repeated conduct in a particular and highly specific type of situation": Handy, at paras. 90-91. This sort of evidence has cogency because "the pattern of circumstances in which [the] accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact": Handy, at para. 91. This evidence may be admissible if its probative value exceeds its prejudicial effect: Handy, at para. 55.
[51] In Handy, the accused was charged with sexual assault causing bodily harm. The complainant testified that consensual sex turned into non-consensual sex accompanied by physical abuse when the accused refused to take no for an answer. At issue was whether evidence of the accused's ex-wife of incidents she had experienced at his hands should have been admitted. In the course of his reasons, Binnie J. at para. 120 explained how to conceptualize the type of reasoning the admission of such evidence would engage:
If the jury could legitimately infer sexual intransigence in closely comparable circumstances from the respondent's past behavior and refusal to take his wife's no for an answer, the present complainant's testimony that intercourse occurred despite her lack of consent gains in credibility. The issue broadly framed is credibility, but more accurately and precisely framed, the "issue in question" in this trial was the consent component of the actus reus and in relation to that issue the respondent's alleged propensity to refuse to take no for an answer.
[52] Such evidence could only be admitted to allow that type of reasoning if the test for admission of similar fact evidence were met. In my view, the use of evidence across counts in this case was designed to engage a similar type of reasoning. It was to show that the appellant had a specific propensity to molest his grandnieces – who were similar in age – in a defined context – when he was alone with them during family visits. Indeed, that was exactly what the Crown, in oral argument in this court, stated was relevant about the across count evidence. In order for the evidence to be used this way, the test for similar fact evidence admission needed to be met and the jury properly instructed on its use. I turn now to that issue.
[53] The appellant complains that there was no formal application for the admission of similar fact evidence, and no precise identification of the issue or purpose for which the evidence was to be used. I would not give effect to those submissions.
[54] Rule 30 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, requires the Crown to bring an application before trial if it is seeking to admit evidence of similar acts (whether included in other counts or not) (r. 30.02(1)). The Crown is required to file a notice of application, setting out, among other things, "a detailed description of the presumptively inadmissible evidence the [Crown] seeks to introduce" and "a precise, case-specific statement of the basis and grounds upon which the evidence is said to be admissible" (rr. 30.03(1)-(2)).
[55] Non-compliance with the Rule is not something which should be treated lightly. A Crown request to admit such evidence is a requirement which flows from its presumptive inadmissibility and the need for an appropriate process to determine whether that presumption should be displaced in a specific case: Tsigirlash, at paras. 26-27. Here, a request but not a formal application was made at the pre-trial conference. On appellate review, the absence of a formal application may not be fatal if the request gave the defence a meaningful opportunity to respond and lay the groundwork for a proper admissibility inquiry: Tsigirlash, at para. 27, R. v. T.B.L. (2003), 173 O.A.C. 159 (C.A.), at pp. 161-162; R. v. Graham, 2015 ONCA 113, 330 O.A.C. 394, at para. 32.
[56] Here, the Crown's request provided the defence a meaningful opportunity to respond at the pre-trial conference. Further, the defence also had a meaningful opportunity to respond in the six months between the pre-trial conference and trial. It was left open at the pre-trial conference for amicus to advise the Crown and the court if there was an objection to evidence being admitted across counts as similar fact evidence. Amicus, who had been appointed to advise the appellant about legal issues, advised at the pre-trial conference that he would be speaking to the appellant about the issue. And the defence also had a meaningful opportunity to respond at the pre-charge conference.
[57] The Crown request as articulated at the pre-trial conference did not expressly identify the purpose for which the similar fact evidence would be used. The purpose for which the evidence is to be used is critical to determine if there is a basis for admissibility: Handy, at paras. 73, 82 and 99. However, I would not view that deficiency as determinative in this specific situation, for two reasons. First, the specificity of the Crown's request was a function of the position the defence was taking. That position was a lack of objection to the evidence being used across counts. At no time did the defence or amicus indicate that more specificity was needed before a response was articulated. Second, this was at its core a case with one overarching issue: did the offences occur as the complainants described them? The appellant's defence was a denial either of what occurred or that what occurred had the character alleged. The purpose of the evidence—the issue the evidence would go to--namely whether there was a pattern of behaviour showing the appellant engaged in acts of a certain character in specific circumstances--was obvious. Indeed, the trial judge in his charge described that purpose: "a pattern of similar conduct that confirms each complainant's testimony that the offences took place".
[58] An admissibility inquiry is required when similar fact evidence is in issue. The trial judge has a gatekeeper function, namely, to decide the threshold admissibility question of whether the evidence on one count may be considered by the jury on any of the others. As outlined above, the trial judge decides this question based in part on whether the allegations reveal a pattern of similar conduct. However, once the trial judge determines the evidence is admissible across counts, it is "entirely within the province of the jury" to decide whether they consider the conduct sufficiently similar to make any inference based on a pattern of similar conduct: R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), at pp. 345-46, per Martin J.A., quoted with approval in R. v. Arp, [1998] 3 S.C.R. 339, at para. 65. Once the evidence is before the jury, the trial judge's duty is to guide the jury through that process with an adequate instruction about the permitted and prohibited uses of this evidence: R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 50.
[59] The trial judge effectively considered admissibility of the evidence across counts in the context of how he would charge the jury. This was appropriate. In a multi-count indictment case, the similar fact evidence issue is not whether the evidence will be heard at all, but whether evidence the jury has heard, because it was properly admissible on one count, can properly be taken into account on another. The trial judge invited submissions, in the pre-charge conference, on what the jury should be told they could and could not do with such evidence. Failing to conduct a separate admissibility hearing in these circumstances does not justify appellate interference, especially given the absence of any defence objection: Graham, at para. 32.
[60] In my view, the across count evidence here was admissible as similar fact evidence. It was not evidence of a general disposition. The evidence can fairly be described as showing a pattern of behaviour in a "closely defined and circumscribed context" demonstrating a specific propensity of the appellant to act in a certain way in certain circumstances, namely when he was alone with his grandnieces and could take advantage of the opportunity provided by family visits. The differences among the offences did not materially detract from their relevant similarity. In cases of sexual offences, the dissimilarities between the sexual acts or the body parts involved are often not as compelling as the similarity in the circumstances surrounding the incidents: R. v. B.(L.) (1997), 35 O.R. (3d) 35 (C.A.), at pp. 52-54.
[61] Although the trial judge did not expressly weigh probative value against prejudice, or engage in a precise review of similarities and dissimilarities as contemplated in Handy, at paras. 121-131, this is understandable given the way the matter was discussed before him. No submission was made that the evidence lacked probative value. There was no argument that prejudice outweighed probative value. The focus of some of the discussion appears to have been about the similarity of the acts or body parts, but I do not take those as indicative of an agreement of lack of essential similarity of circumstances. I agree with the Crown that all we can take as having been agreed at the pre-charge conference was the content of the final jury charge itself. It was clear from the discussion, and the final jury charge, that to the extent there might be prejudice to the appellant, that was properly dealt with by the limiting instructions in the charge itself.
[62] Accordingly, the trial judge did not err in his gatekeeper function in allowing the jury to consider whether the acts alleged in any particular count were similar to the others, and if so found, to use the evidence on the other counts, to decide whether each offence took place.
[63] Nor was there any error in the way the jury was instructed. The jury was instructed that each count required its own proof. It would have been clear to the jury that to the extent they did not find the acts similar, they could only convict the appellant of a count based on the evidence related to that count. As well, the charge made it clear that in no event could the jury use prohibited propensity reasoning; they were expressly told that even if they found the appellant guilty of any of the counts they could not use that to conclude he is "a person of general bad character or disposition who likely committed the acts charged in any other count because of that bad character or disposition".
[64] Although the charge did not provide the jury with an invitation to list similarities and differences in order to decide if acts were similar, it instead provided an example of what might be considered similar. That example involved similarities of sexual acts and body parts involved, as well as of circumstances. If anything, this would set the bar for similarity higher, rather than lower, that it otherwise might have been. There was no prejudice to the appellant flowing from this approach.
[65] In reaching these conclusions I do not equate amicus with defence counsel, nor consider the appellant bound by positions or statements of amicus. Nor in my view does anything turn on the timing of the appointment of amicus at the pre-trial conference, compared to when, at the pre-trial conference, similar fact evidence was discussed. The appellant had the benefit of being able to consult with amicus on the Crown request about across count evidence from the time of the appointment of amicus until and through trial, including about the jury charge. Given the terms of the appointment of amicus and his involvement, the trial judge did not fail in any duty to assist the appellant in relation to the similar fact evidence issues.
B. The Trial Judge's Aide Mémoire Ruling
[66] A trial judge has a duty, while maintaining impartiality, to assist a self-represented accused to understand the issues and conduct the defence. But the scope of the duty depends on what is reasonable in the circumstances, and must be considered in light of the trial judge's other duties, including to ensure a fair and efficient trial in which the rules of evidence are respected: R. v. McNeice, 2019 ONCA 836, at para. 9.
[67] In my view, there was no error in the trial judge's discretionary ruling on the appellant's request to use documents to jog his memory. The appellant's evidence was being led by amicus at the appellant's request, and the trial judge was entitled to conclude that would obviate the need for an aide mémoire. Moreover, the appellant was invited to review documents before completing his evidence to ensure he had said all he wanted to.
[68] I would not give effect to this ground of appeal.
C. The Trial Judge's References to the Appellant
[69] An inadvertent misstatement by a trial judge in a charge, quickly corrected, does not justify a speculative assumption that the trial judge was expressing a personal opinion on the guilt of the accused or that the jury would take it that way: R. v. Wilson, 2013 ONCA 222, at para. 8.
[70] The two references by the trial judge during the charge to the appellant as "Mr. Guilty" (a similar misstatement to that in Wilson) were promptly corrected, and were the subject of a clarifying instruction.
[71] The jury could not be taken to have understood the trial judge's statements to be other than inadvertent slips. Indeed, the first was made while he was explaining to the jury circumstances in which they must acquit.
[72] In my view, these inadvertent misstatements did not cause prejudice. I would not give effect to this ground of appeal.
IV. CONCLUSION
[73] I would dismiss the appeal.
Released: "G.R.S." November 14, 2019
"B. Zarnett J.A."
"I agree. G. R. Strathy C.J.O."
"I agree. David Watt J.A."
