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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20200423 DOCKET: C56622

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

L.K. Appellant

Counsel: Michael Lacy, for the appellant Roger Shallow, for the respondent

Heard: January 27, 2020

On appeal from the conviction entered by Justice Gary T. Trotter of the Superior Court of Justice, sitting with a jury, on June 3, 2011, and the sentence imposed on February 7, 2012.

Hourigan J.A.:

A. Introduction

[1] The appellant was charged with seven counts relating to her involvement in sexual offences committed by two of her male acquaintances against her minor daughter and nine counts relating to her conduct during the course of the resulting police investigation. She was convicted of the following ten offences: one count of sexual assault, two counts of criminal negligence, two counts of failing to provide the necessaries of life, one count of child abandonment, two counts of obstructing a peace officer, and two counts of obstructing justice. The convictions for failing to provide the necessaries of life and child abandonment were conditionally stayed pursuant to the principle in R. v. Keinapple, [1975] 1 S.C.R. 729. She was sentenced to a global period of incarceration of 6.5 years.

[2] The appellant appeals her convictions and seeks leave to appeal her sentence. She also brings a motion to adduce fresh evidence regarding her cognitive and executive function and her alleged impaired ability to process information.

[3] During oral argument, the appellant abandoned the sentence appeal as moot and elected not to proceed with her motion to file fresh evidence. She also abandoned five of her ten grounds of appeal. The remaining grounds relate primarily to alleged deficiencies in the jury charge.

[4] These reasons explain why I would dismiss the appeal. In summary, the trial judge properly charged the jury. His instructions provided the necessary guidance to effectively adjudicate the charges and, in particular, to apply the burden of proof. While there was a minor legal error that became apparent only after the Supreme Court of Canada clarified the law, the error had no impact on the overall fairness of the jury charge.

B. Facts

[5] The complainant, SK, was born in Romania in 1995. She was adopted by the appellant in 1997. SK lived primarily in Paris, Ontario, where she was raised by the appellant and the appellant's elderly parents.

[6] In 2003, the appellant's friend of many years, Garry Byer, was imprisoned for allegedly committing sexual assaults. When the appellant visited Byer in custody, she brought along SK, who was nine years old at the time. The appellant was subsequently introduced to several men who had been convicted of sexual offences against children. One of these men, Douglas McKenzie, contacted the appellant and SK by phone while he was in custody. Two others—Randy Bartley and Gary Hoare, who were also imprisoned and shared cells with McKenzie at some point—befriended the appellant and associated with her and SK upon their release from jail.

[7] The appellant allowed SK to be alone with Bartley and Hoare on many occasions, sometimes for extended periods of time and sometimes overnight. When one of the appellant's high school friends met Hoare, she suspected he might be a pedophile and contacted the police.

[8] Over the course of the 16-month police investigation, the appellant gave seven statements to the police. There were many inconsistencies in the statements about how the appellant came to know Bartley and Hoare and whether she had ever left the complainant alone with either of them. The appellant denied knowledge of any sexual contact between Hoare or Bartley and SK. She advised the officers that the complainant never told her about anything inappropriate. However, the appellant acknowledged that leaving SK with Hoare was a risk and that it demonstrated a lack of judgment on her part.

[9] Following the lengthy police investigation, several charges were laid against Hoare, Bartley, and, eventually, the appellant. Hoare pleaded guilty to one count of invitation to sexual touching (on the basis that SK walked in on him masturbating). Bartley pleaded guilty to three offences relating to SK: sexual assault, sexual interference, and invitation to sexual touching.

[10] The appellant’s trial centred on a single question: what was the appellant’s role in, and knowledge of, SK’s sexual abuse? The Crown argued that the appellant knew Bartley and Hoare were child sex offenders and nonetheless aided and encouraged them in committing offences against SK. She did this by cultivating their relationships with SK and by giving them repeated and prolonged access to her. The Crown alleged that by exposing her daughter to these men, the offences were objectively foreseeable. Further, the appellant's acts and omissions were a significant contributing cause to the long-term psychological harm that SK has and will continue to experience. The Crown also argued the appellant lied to the police throughout the investigation and attempted to prevent authorities from learning the truth by asking the complainant and another witness to lie.

[11] The defence argued the appellant was unaware of the alleged inappropriate sexual acts against SK and that, while she did lie to police during her interviews, the untruths did not impede the police investigation. The appellant did not testify at trial. However, her police interviews were admitted into evidence after defence counsel conceded their voluntariness.

C. Issues

[12] This appeal raises the following issues:

(i) Did the trial judge err by failing to instruct the jury about exculpatory evidence pursuant to R. v. W.D., [1991] 1 S.C.R. 742?

(ii) Did the trial judge err by failing to provide a “no probative value” instruction about the appellant’s police statements with respect to the sexual assault and negligence-based charges?

(iii) Did the trial judge err by leaving criminal negligence with the jury?

(iv) Did the trial judge err by instructing the jury that the offence of child abandonment required an objective assessment of the appellant’s intent?

(v) Did the trial judge err by not providing a specific limiting instruction regarding the evidence the complainant’s treating psychologist gave about her discussions with the complainant?

D. Analysis

[13] Before considering the grounds of appeal related to alleged errors in the jury charge, it is helpful to consider the purpose and standard of appellate review of jury charges.

[14] The starting proposition is that an accused is entitled to a properly instructed jury, not a perfectly instructed jury: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 9; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19 at para. 41; R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 2, 6. To determine if the jury was properly instructed, an appellate court takes a functional approach: it asks whether the charge as a whole, in the overall context of the trial (including addresses of counsel and the positions they advanced), enabled the jury to decide the case according to the law and evidence: Calnen, at para. 9; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39; R. v. Adan, 2019 ONCA 709 at paras. 61-63.

[15] The absence of trial counsel’s objection is not determinative of the adequacy of a charge. However, trial counsel's silence is often compelling evidence that the failure to include an instruction now sought did not actually prejudice the appellant: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58; Jacquard, at para. 38. Counsel are expected to fulfill their professional obligations as officers of the court and raise any concerns about the adequacy of a charge with the trial judge. A pre-charge conference is not a game of gotcha where counsel can sit quietly and reserve his or her objection for appeal.

[16] This latter point is particularly important in this case. The trial judge afforded both counsel ample opportunity to discuss and review the draft jury instructions. It is evident from the record that he was open to input and striving to craft a fair charge. I cite, as but one example, the trial judge’s decision not to include a full Vetrovec warning, which would have required him to refer to large amounts of independent confirmatory evidence. In the face of this record, this court is entitled to consider trial counsel’s silence regarding the numerous errors that they now allege individually, and cumulatively, entitle the appellant to a new trial: Adan, at para. 63.

(I) The W.D. Instruction

[17] The appellant says the jury ought to have been given a W.D. instruction. It is the second part of the W.D. test that the appellant says was not articulated for the jury. In the appellant’s view, the trial judge should have told the jury that:

• even if they did not believe Bartley and Hoare’s evidence, they were still obliged to acquit the appellant if either Bartley or Hoare’s evidence gave them reason to doubt her guilt; and,
• even if they did not believe the appellant’s denials of guilt in her police statements, they were still obliged to acquit if these denials gave them reason to doubt her guilt.

[18] The second part of the W.D. analysis provides that if the jury does not believe the accused’s testimony or other exculpatory evidence, but this evidence raises a reasonable doubt, the jury must acquit. The Alberta Court of Appeal’s recent reformulation of the W.D. test in R. v. Ryon, 2019 ABCA 36, 371 C.C.C. (3d) 225 at para. 38, clarifies the underlying objective of this step:

[W]hen assessing exculpatory evidence jurors should understand that they have three choices, not two: they may accept the evidence, they may reject it, or they may find themselves unsure whether the evidence is true or false. In other words, there is a “third alternative” to confident acceptance or confident rejection and if they find themselves in this middle ground that usually means they have a reasonable doubt that must benefit the accused.

[19] Thus, the second step ensures jurors understand that even if they cannot determine whether exculpatory evidence should be believed or rejected, the evidence may still raise a reasonable doubt and, if so, they must acquit.

[20] For my analysis on this ground of appeal, I will first consider the testimony of Bartley and Hoare, followed by a review of the appellant's police statements.

(1) Bartley and Hoare’s Testimony

[21] Bartley and Hoare testified about their criminal records involving sexual offences against children, their relationship with SK, and the appellant’s knowledge of both these things.

[22] As I explain, their testimony did not raise a reasonable doubt about the appellant’s guilt. Thus, the trial judge did not err by failing to give a W.D. instruction in this regard.

(a) Bartley

[23] The appellant was charged with three offences in relation to the sexual offences Bartley committed against SK: criminal negligence, failure to provide the necessaries of life, and sexual assault.

[24] Regarding the negligence-based charges, Bartley testified that the appellant knew about his previous criminal convictions for sexual offences involving children and that he showed her the medication he was on to reduce his sex drive. Bartley also testified about his relationship with SK and the appellant’s knowledge about that relationship. His evidence demonstrated that the appellant had the opportunity to observe many red flags that pointed to an inappropriate relationship. These include the fact that he kept a lock of SK’s hair, he hung a picture of her on the wall, he would kiss her goodbye when she left, and he had at least one inappropriate conversation with SK regarding her private parts.

[25] No part of Bartley’s evidence on its own was capable of leaving the jury with a reasonable doubt about the appellant’s guilt on any of the negligence-based charges. Indeed, even if the jury accepted Bartley's testimony, they could still find, beyond a reasonable doubt, that the appellant acted with a reckless disregard for SK’s well-being by leaving SK in Bartley’s care. A W.D. instruction is not appropriate here because Bartley’s evidence on these offences is not exculpatory in the W.D. sense of that term.

[26] Regarding the sexual assault charge, Bartley denied ever sexually assaulting SK, despite having pleaded guilty to this offence. When asked about his plea, Bartley said he could not remember everything about the proceedings and that he did not have actual knowledge of some of the facts that formed the guilty plea's Agreed Statement of Facts. I note that in the portion of the jury charge related to the sexual assault charge, the trial judge focuses on Bartley’s denials. He then explicitly instructs the jury that unless they are satisfied beyond a reasonable doubt that Barley sexually assaulted SK, they must acquit. He went on to say that without SK’s sexual assault, there would have been no offence for the appellant to aid or abet.

[27] Viewed in isolation, portions of Bartley’s testimony could potentially raise doubt about his guilt on the sexual assault offence. For example, he testified that he is not sexually attracted to underage girls. He also explained that he pleaded guilty to the charges related to SK because he wanted to avoid a longer sentence and a dangerous offender application. The trial judge instructed the jury that Bartley may have had any number of reasons for pleading guilty.

[28] The jury charge considered as a whole provided the functional equivalent of a W.D. instruction. The trial judge could have explicitly instructed the jury that if Bartley's denial of sexually assaulting SK left them with a reasonable doubt, they must acquit the appellant on the sexual assault charge involving Bartley. But that instruction was not requested. Nor was it necessary or would it have added anything of substance to the charge.

(b) Hoare

[29] The appellant was charged with the same three offences in relation to the sexual offence Hoare committed against SK: criminal negligence, failure to provide the necessaries of life, and sexual assault. It is unnecessary to consider whether there should have been a W.D. instruction concerning the sexual assault involving Hoare. The jury acquitted the appellant on that charge.

[30] Regarding the negligence-based charges, Hoare testified that he did not tell the appellant why he was in jail. He said he did not discuss his previous convictions for sexual offences against children or his probation conditions with the appellant. But he left open the possibility that someone else could have told her. Hoare also testified about his relationship with SK. As with Bartley, several pieces of evidence suggested a possible inappropriate relationship with SK. For example, he bought SK presents, including a cell phone. Hoare also admitted that he walked around the appellant’s Paris home naked and that both the appellant and SK caught him doing so.

[31] While Hoare denied sexually assaulting SK, his evidence describing what he did do in her presence was not exculpatory in relation to the negligence-based charges. Just as with Bartley, that evidence supported the Crown’s argument about the appellant’s reckless disregard for SK’s well-being. Accordingly, no W.D. instruction was necessary on those charges.

(2) The Appellant’s Police Statements

[32] The next issue is whether a W.D. instruction was required regarding the appellant’s police statements. Again, a question arises about whether these denials actually amounted to exculpatory evidence. I say this because part of the Crown’s theory was that the appellant was willfully blind. In nearly every instance where the appellant denied knowledge, it was arguable that the circumstances she admitted to pointed strongly to her being willfully blind.

[33] For the purposes of my analysis, I accept that the appellant’s police statements contained potentially exculpatory evidence. In my view, they are correctly identified as “mixed” out-of-court statements. Some of their contents are inculpatory while other parts are exculpatory: R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 61.

[34] The application of W.D. is straightforward in the classic scenario where a complainant alleges that the accused engaged in criminal conduct and the accused denies the allegation completely. But with mixed out of court statements, the application of W.D. is more nuanced because the exculpatory aspects of the statement are inextricably intertwined with the inculpatory aspects. Watt J.A. writing for this court in M.P., at para. 61, considered the requirement for a W.D. instruction for mixed out of court statements:

A second point concerns instructions about the evidentiary value of a “mixed” out-of-court statement of an accused. A “mixed” statement is one in which some of the contents are inculpatory and other parts exculpatory. Instructions on the exculpatory portions of the statement must make it clear that these parts of the statement retain their evidentiary value in exculpation as long as the jury does not reject them as untrue: R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at paras. 32-34. But the failure of a trial judge expressly to instruct the jury in these terms is not necessarily a fatal blow to a conviction provided that the charge, as a whole, makes the burden of proof in relation to reasonable doubt and issues of credibility clear to the jury and does not leave the case for them to decide on an “either/or” basis: R. v. B.(P.), 2016 ONCA 12, 346 O.A.C. 1, at para. 14.

[35] In this case, the trial judge correctly described the burden of proof. He accurately explained the concept of reasonable doubt and made it clear that it could arise from the totality of the evidence or the absence of evidence. He made specific reference to the exhibits, which included the appellant's statements. In reviewing the evidence, the trial judge also referenced the potentially exculpatory portions of the appellant’s statements. He also reviewed each element of every offence in the multi-count indictment and explicitly linked the reasonable doubt requirement to each element.

[36] The jury was not left with an either/or contest. They would have understood the burden of proof concerning reasonable doubt and issues of credibility. They understood that if they had a reasonable doubt they were obligated to acquit. In fact, they did acquit on one of the counts. In these circumstances, I am not satisfied that a specific W.D. instruction was required. Accordingly, I would dismiss this ground of appeal.

(II) No Probative Value Instruction

[37] The trial judge ruled that the appellant's lies to the police and her various statements were not capable of providing circumstantial evidence on the other charges. The Crown does not challenge this ruling on appeal.

[38] The appellant submits that it was incumbent on the trial judge to instruct the jury that the evidence relating to the obstruction charges had no probative value on the substantive charges and could not be used as circumstantial evidence that the appellant knew of her daughter’s exploitation.

[39] The appellant is correct that there was no specific instruction to the jury that the lies told to the police were not evidence on the other counts. However, the trial judge did give an explicit instruction that each count must be considered separately and only on the evidence relevant to that charge. Moreover, when the trial judge reviewed the evidence at length, he referred to the lies, many of which were admitted by the time of trial, only in respect of the obstructing justice charges. Importantly, the defence did not request a no probative value instruction and did not object to the charge on this point.

[40] I recognize that in addition to failing to give a no probative value instruction, the trial judge’s description of the Crown’s theory referenced the Crown’s attempt to tie the lies to the appellant’s guilt on the charges other than the obstruction charges. However, in my view, it would have been clear to the jury from the instructions given that they were not to use the appellant’s lies as evidence on the other charges. I would, therefore, dismiss this ground of appeal.

(III) Criminal Negligence

[41] The appellant was charged with two counts of criminal negligence causing bodily harm:

• Count 3: “did by criminal negligence to wit: by exposing [SK] to Randolph BARTLEY, cause bodily harm to [SK], contrary to s. 221 of the Criminal Code.”
• Count 6: “did by criminal negligence to wit: by exposing [SK] to Gary Reid HOARE, cause bodily harm to [SK], contrary to s. 221 of the Criminal Code.”

[42] Section 219(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides that “every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” Duty is defined under s. 219(2) as imposed by law.

[43] The defence brought an unsuccessful application for a directed verdict on count 6. The trial judge could not conclude there was no evidentiary basis upon which the jury could conclude that SK’s exposure to Gary Hoare was a contributing cause of her psychological harm.

[44] During the pre-charge discussions, the trial judge noted that the facts of this case are not typical of a charge of negligence causing bodily harm. Despite his reservations, the trial judge decided to leave the counts with the jury. He found the jury could consider only:

• the harm the complainant has suffered or presently suffers from;
• the harm flowing from the alleged abuse perpetrated by the two men; and,
• the harm caused by the appellant's acts or omissions.

[45] The appellant submits that approaching the issue in this way was problematic and prejudicial. The appellant concedes that bodily harm includes psychological harm: R. v. McCraw, [1991] 3 S.C.R. 72 at p. 80. However, she argues that considering the complainant's condition at the time of trial invariably entailed a future-based analysis going beyond the harm that was inflicted at the time of the offences, which occurred years earlier. According to the appellant, the date of the trial was an arbitrary line with which to assess whether psychological harm was caused.

[46] This submission does not persuade me. The trial judge’s instructions made clear that existing, not future, harm was necessary for a conviction. The trial judge correctly reviewed the elements of the offence and related the relevant evidence to the charges. There was evidence available on each element of the offence on which the jury could convict. In particular, there was evidence to support the finding that the exposure to Bartley and Hoare caused psychological damage to the complainant that was extant at the time of trial.

[47] The appellant makes one additional argument on this ground of appeal. She submits that the harm caused must be immediate. In support of that submission counsel referred to a driving case from this court: R. v. Shilon (2006), 240 C.C.C. (3d) 401 (Ont. C.A.).

[48] In my view, the trial judge correctly rejected this argument. Immediacy of harm may serve to provide evidence of a causal link between the criminally negligent act and the bodily harm; however, there is no principled reason why it should be considered an essential element of the offence. The Crown is free to prove the causal link by other means. In this case, the Crown did so through expert evidence that established a causal link between the bodily harm suffered by the complainant and the complainant’s exposure to Bartley and Hoare.

[49] Based on the foregoing, I would dismiss this ground of appeal.

(IV) Child Abandonment

[50] The trial judge instructed the jury that the appellant’s intent for the child abandonment count was to be assessed objectively. However, in R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269—released two years after the trial in this case—the Supreme Court ruled that the fault element for abandonment must be assessed subjectively.

[51] The Crown concedes that, in light of this subsequent jurisprudence, the jury was not correctly instructed on the elements of child abandonment. However, the Crown relies on the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code: he submits the error was harmless because it could have had no impact on the verdict.

[52] I agree with the Crown’s submission. The subjective fault requirement was imposed by the Supreme Court in A.D.H. to ensure that only those who commit the offence knowingly or recklessly are punished. In this case, the appellant was convicted of the more serious offences of sexual assault and criminal negligence causing bodily harm, both of which require the jury to consider the appellant’s subjective intent. In these circumstances, there is no realistic possibility that the jury would, if properly instructed, conclude that the appellant did not have the requisite subjective intention. Thus, the error was of no consequence, and the curative proviso is available. Therefore, on this basis, I would dismiss this ground of appeal.

(V) Expert Evidence

[53] At trial, the Crown brought an application to call expert evidence on two points: (1) the phenomenon of incremental or delayed disclosure and (2) the bodily (psychological) harm suffered by the complainant. The trial judge denied the application for three reasons:

• one of the proposed experts lacked the objectivity and impartiality required to testify;
• expert evidence was not required for incremental or delayed disclosure; and,
• the application to adduce evidence of bodily harm was premature because it was brought before the complainant's testimony and so it was not possible to determine whether the necessity criterion had been established.

[54] After SK testified, defence counsel advised that she was not conceding the issue of psychological harm. Defence counsel took the position that SK’s evidence did not establish that she was suffering the requisite degree of bodily harm under any of the offences. As a consequence of the defence’s position, the trial Crown renewed its application to call expert evidence.

[55] The trial judge ruled that Dr. Jasmine Eliav, a registered child psychologist, could provide expert evidence on the issue of harm. Following that ruling, the trial Crown asked whether he could lead foundation evidence about Dr. Eliav’s discussions with the complainant. The trial judge correctly responded that the “expert opinion evidence is only as valuable as the proved foundation upon which it relies” and that if Dr. Eliav “testifies to things that have not been proved here, then it will detract from its value to the extent that they have not been proved, especially when the complainant testified.”

[56] During the course of her testimony, Dr. Eliav testified about what the complainant had told her during their therapeutic sessions. The appellant says the trial judge should have provided a limiting instruction regarding Dr. Eilav’s testimony because there was a significant danger that the jury would use it to determine whether the abuse actually occurred.

[57] I would not give effect to this submission. The trial judge instructed the jury how to deal with a situation where the expert relies on facts that are different from the facts they find from the evidence:

To the extent that the facts you find are different from the facts assumed or relied upon by the expert in reaching his or her conclusion, you may consider the expert’s opinion less helpful to you in deciding this case. How much or little you believe of or rely upon an expert’s opinion is entirely up to you.

[58] Based on this instruction, I am satisfied the jury understood that it was their assessment of the facts that mattered. I am also satisfied the jury understood they were not bound to accept facts as proven simply because Dr. Eliav relied on them in providing her opinion. Therefore, I would dismiss this ground of appeal.

E. Disposition

[59] For the foregoing reasons, I would dismiss the appeal from conviction. I would also dismiss the sentence appeal and the motion to adduce fresh evidence as abandoned.

Released: “D.D.” April 23, 2020

“C.W. Hourigan J.A.”

“I agree. Doherty J.A.”

“I agree. David Watt J.A.”