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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
CITATION: R. v. MRS, 2020 ONCA 667
DATE: 20201023
DOCKET: C67415
Paciocco, Nordheimer and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
MRS
Appellant
James Lockyer and Craig Zeeh, for the appellant
Tanya M. Kranjc, for the respondent
Heard: September 10, 2020 by video conference
On appeal from the convictions entered by Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, on March 8, 2019.
Paciocco J.A.:
OVERVIEW
[1] The appellant, MRS, was convicted by a jury of charges involving the sexual and physical abuse of his spouse, SS. He was also convicted of charges involving the physical abuse of his two male children, BS and TS. In addition to evidence about the specifically charged allegations, evidence of other extrinsic misconduct by the appellant was presented during the trial.
[2] The appellant appeals his convictions. I will address two of the grounds of appeal that he raises.
[3] First, the appellant contends that the trial judge erred in failing to direct the jury against cross-count reasoning between counts involving the same complainant, and cross-count reasoning between counts involving different complainants. He also contends that the trial judge erred by failing to give the jury a limiting instruction relating to the charged and uncharged misconduct. For the following reasons, I would allow the appeal on this ground and order a new trial.
[4] Second, the appellant argues that the trial judge erred by giving on overlong and needlessly complicated jury charge. Although I share many of the concerns raised by the appellant, since a new trial will be required in any event, I need not decide whether the trial judge committed the error of giving an ineffective jury charge. I will, however, offer brief comments on this ground of appeal.
MATERIAL FACTS
[5] The relationship between the appellant and SS began in 1998. For most of their relationship, the appellant and SS lived separately. They had three children while living apart. Those children, BS, TS and MS, lived with SS, who moved frequently. In 2011, the appellant moved in with SS and their children. The appellant’s daughter from another relationship also came to live with them. In 2013, they moved into a home where the appellant’s mother and brother also lived. BS moved out of the home in 2015. SS and her remaining children soon followed. They left the home on November 11, 2015, ending the relationship after 17 years.
[6] Shortly after the appellant and SS separated, the police were contacted as the result of a statement made by the appellant’s daughter, MS, then 11-years of age. SS and the three children were interviewed. When interviewed, SS said nothing about abuse that she had suffered from the appellant.
[7] On May 20, 2016, after SS commenced family court proceedings and a civil suit against the appellant arising from a family business venture, SS made physical and sexual abuse allegations against the appellant to the police. Thirteen charges were laid, capturing allegations made by SS and the children.[1]
[8] During the trial on those charges, the younger two children, TS and MS, testified using closed circuit television. Prior statements that they had made to police were admitted into evidence pursuant to s. 715.1 of the Criminal Code.
[9] The appellant testified in his defence and contends that all the allegations against him are false. The appellant’s position is that all the charges have been orchestrated by SS.
A. Charged Allegations Involving SS
[10] The charged allegations commenced in the period between 2000 and 2002. The jury convicted the appellant of assaulting SS during that period, contrary to s. 266(a) of the Criminal Code, and of attempting to choke her with his hands, contrary to s. 246(a) of the Criminal Code: counts 6 and 7. SS testified that during this period the appellant would interrogate her about sexual relationships he suspected. In one such session, the appellant ran across the room, pulled her hair, hit her and choked her into unconsciousness. During the assault, SS urinated herself. Shortly after the assault, the appellant told her he had been thinking about where he would leave her body.
[11] As the result of an alleged event in 2010, the appellant was also convicted of an additional count of assaulting SS, this time by smashing her head on a staircase: count 8. He was also convicted of choking her, again into unconsciousness, during the same incident: count 9. SS testified that this attack occurred after she found photos of female sex workers that had been taken in the appellant’s condominium with his camera. She had googled a number used to repeatedly call the appellant and it was from “back pages ads”, a service that advertises sex for sale. This attack occurred after she confronted him about “trafficking girls”.
[12] The appellant was also convicted of anally raping SS in 2012 or 2013, after she told him that he could no longer hit her because her injuries would be visible when she went to work at the store: count 11.
[13] As well, he was convicted of an assault causing bodily harm in 2015 based on testimony by SS that he punched and kicked her into unconsciousness in a vicious beating that left her unable to move for days: count 12. He was also convicted of another count of sexually assaulting SS based on her testimony that later that same evening he anally raped her to punish her for pushing him even though he had “given [her] everything”: count 13.
[14] The appellant was acquitted of one assault count involving SS: count 10. SS testified that in the spring of 2013, the appellant pulled on her hair while she slept in her daughter’s room, told her to get up, took her to his car, and drove her to an unknown park before demanding that she empty her pockets and start walking. She said he ultimately relented and drove her home (the “park incident”). The jury learned that prior to the trial, when telling a friend about this incident, SS had only described being verbally coerced into the car, without mentioning any physical force. The jury returned a not guilty verdict.
B. Charged Allegations Involving BS
[15] The appellant was convicted of three assault-based offences against his oldest son, BS.
[16] The first conviction related to a broken finger BS presented with at hospital in 2008. SS testified that the appellant broke BS’s finger on that occasion by putting the 9-year-old’s hand on a table and bringing his closed fist down on it forcefully. Although BS described the broken finger occurring years later when he was defending himself as the appellant repeatedly punched him in the face, the jury convicted the appellant on the charge that this assault occurred “on or about the 28th day of October in the year 2008”: count 1.
[17] The second conviction of the appellant relating to BS was for assaulting him with a weapon between June 2011 and June 2013, namely a belt, contrary to s. 267(a) of the Criminal Code: count 3. BS testified to being beaten with a belt for being too loud upon returning from a birthday party [the “birthday party incident”].
[18] The third conviction relating to BS arose from an assault alleged to have occurred in 2015: count 5. BS testified that upon returning home late one night, the appellant dragged him into the kitchen, punched him to the ground and choked him.
C. CHarged Allegations Involving TS
[19] The appellant was convicted of two counts of assaulting TS with a weapon. The first conviction was for assaulting TS with a belt between June 2011 and June 2013: count 2. Evidence was presented of beatings with a belt during this period, including once during the birthday party incident when BS was also beaten with a belt.
[20] The second conviction for assaulting TS with a weapon was on a charge that alleged that the appellant assaulted TS with a broomstick or a belt between June 2013 and September 2015: count 4. Evidence of the broomstick and belt assaults related to different incidents. TS testified that after returning from ice skating he was instructed to remove his clothes and was struck with a belt on his back, leaving welts. On another occasion, the appellant told TS to take off his shirt and then hit him with a broomstick.
D. Uncharged discreditable conduct evidence
[21] In addition to evidence about the charged criminal allegations, evidence was presented of discreditable conduct by the appellant. No issues were raised regarding the admissibility of any of this evidence as it was called.
[22] A good deal of evidence was presented that the appellant engaged in uncharged criminal activity. SS testified that when she met the appellant she was attracted to the allure of money and knew he was selling drugs. She testified that he had thousands of dollars, and that she had seen drugs in his possession. When she asked him where he got the money, he told her to mind her own business.
[23] As indicated, the jury learned, during the narration of the 2010 assault and choking charges, that the appellant was allegedly trafficking sex workers.
[24] During the cross-examination of SS, defence counsel confronted SS with an incident where she called the police on the appellant, claiming he had a gun. He was charged but the charges were dismissed after SS made herself “unavailable for trial”.
[25] When asked whether there were times when she did not see the appellant during the period that they were living apart, she replied that during one period she did not see him because he was in jail.
[26] SS provided extensive evidence relating to uncharged violent conduct by the appellant. Some of this evidence related to violence against BS and TS. She said the appellant slapped BS when BS was 5 months old for crying while the appellant was changing him. In addition to describing specific acts of violence against BS and TS, SS estimated that the appellant assaulted BS at least ten times after the family moved in with BS’s mother and brother. She described TS being assaulted as well, but not as often.
[27] Most of the evidence offered by SS relating to uncharged conduct involved allegations of violence against her, which she described as a constant feature of their relationship. She described how, early in their relationship, the appellant began to subject her to marathon interrogation sessions. In “a good year”, such interrogations would occur two or three times, sometimes accompanied by assaults. She estimated that she would be assaulted a couple of times a year. He would choke her “every time”, “that was his thing”. She said that “many times” she was left with bruising on her neck.
[28] The jury heard of one specific uncharged incident of note that I will return to below. In her testimony in-chief, SS recalled a physical altercation at some point between 2001 and 2005 that left her with two black eyes and led to someone calling the Children’s Aid Society (the “black eyes incident”).
[29] Even leaving aside the physical assaults, SS described a disturbingly abusive relationship. When asked about incidents that occurred while she was living at a specified address (between 2005 and 2011) she said, “I’m stuck on the really bad things that happened. Like there was a million,” and described occasions when he would repeatedly wake her while she tried to sleep.
[30] SS described how the appellant controlled her throughout their relationship. From the beginning of the relationship he had a “rule” prohibiting her from having visitors in the house and threatened to kill her if she ever had a relationship with another man. The control got to the point where she described the appellant as being her “pimp” in a “different way” because he took the money that she made in the family business. She testified that after the family moved in with the appellant’s mother and brother, she was a virtual prisoner, needing permission to leave the house, and was denied access to a cell phone, a bank account and money.
[31] The children also gave general evidence about violence in the home involving them and their mother. TS testified that after the family moved to the home that they lived in from 2011 to 2013, the appellant became increasingly violent, often punching BS, and sometimes hitting TS and BS with a belt.
[32] BS also testified to an uncharged incident between 2011 and 2013 when the appellant struck him on the leg with a coat hanger for being late for school. He also said that on one occasion the appellant punched him so hard that his cornea was displaced.
[33] BS testified that when they moved in with the appellant’s mother in 2013 the appellant become more violent, hitting him regularly, and that the appellant’s mother encouraged the appellant to do so. He estimated that, on average, someone in his family was assaulted four times a week during this period.
[34] MS testified that the boys were beaten on several occasions with their pants off, and SS’s mother testified to seeing SS with bruises on her face and seeing her moving stiffly.
[35] In submissions to the jury, the Crown presented the charges as part of a larger narrative of an abusive household. In her opening statement, the Crown told the jury that they would hear about how the appellant abused SS emotionally, sexually and physically during “the 15 years that they were in a relationship” and that he “abused their two sons and impacted their daughter who was a witness to the abuse”. The jury closing began from the same theme: “[SS] and her children endured years of abuse at the hands of [the appellant].”
E. The JURY CHARGE
[36] During the pre-charge conference, the Crown advised the trial judge that she was “not going to be asking the jurors to look at similar fact”. She raised the potential need for a “prior discreditable conduct” caution in relation to the acquittal on the gun charge “in case it became a concern”, but stated that “things like the [black eyes incident] that’s not a count on the indictment; it’s just part of the narrative." She said, “I don’t know if it would fit as prior discreditable conduct … Because I’m not asking them to look at that and draw a conclusion that because they believed this, they should believe another count on the indictment.”
[37] Defence counsel later raised the issue again, stating, “I agree with my friend that it should be a limiting instruction … A limiting instruction. You know, they can’t - they can’t accept the evidence that something is not on the indictment for - as propensity for that something else occurred.” Defence counsel did not ask for any further instructions relating to discreditable conduct evidence.
[38] During her closing submissions, the Crown told the jury that she was not asking them to consider the allegation about the gun. She said that this was not evidence that the Crown could lead, and that it was prejudicial: “Don’t use that to convict [the appellant] of any of these later offences.” She then noted that they had heard about other incidents that are not on the indictment, such as the black eyes incident. She said of this incident, “[t]his evidence is useful to you to understand the lengths that [SS] was going to hide what was happening to her” by making up excuses.
[39] The trial judge gave an elaborate jury charge that took 192 pages to transcribe. It was delivered over more than five hours.
[40] After covering the familiar preliminary matters relating to the duties of jurors and the presumption of innocence, the trial judge discussed general principles relating to the evaluation of evidence, including the use that could be made of the appellant’s criminal record, which was disclosed to the jury when the appellant testified, pursuant to s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The trial judge told the jury not to use the criminal record to infer that the appellant “is the sort of person who would commit the offences charged”, and that they should use those convictions solely in deciding how much or how little of his testimony they will believe.
[41] The trial judge then embarked on an 84-page witness-by-witness recitation of the testimony provided during the trial. This recitation repeated much of the testimony the witnesses had provided about uncharged conduct, including the appellant’s slapping of baby BS; his drug trafficking activities; his control of SS; her knowledge of what “he was capable of”; that he did not like her body when she was pregnant; that when TS was born he told her TS was ugly; that she knew he had been unfaithful; her being “black and blue in the face” that led to a CAS visit (the black eyes incident); the marathon interrogation sessions; the discovery of proof that he was “trafficking girls”; that he was controlling her and pimping her in a “different way”; that, when they moved in 2013, BS was being hit a lot and things had got “really bad for the boys”; the gun incident; that MS was traumatized by the things she saw in the house; that the appellant wanted SS to abort TS and MS; and that BS’s cornea was displaced by a punch from the appellant. In the course of this witness-by-witness summary, the trial judge also repeated the testimony given by witnesses about the charged offences.
[42] Over 69 further pages, the trial judge then gave a charge-by-charge direction, identifying evidence specifically relevant to each count. In describing the charges, the trial judge provided complete jury instructions on each element of the charged offences. This included detailed instructions on the meaning of intention to assault, and “consent” to the assaults and sexual assaults, matters that were not at issue in this case.
[43] In the course of this extensive instruction, the trial judge said nothing about cross-count reasoning or limitations on the use of discreditable conduct evidence, other than the criminal convictions. Included in the jury direction was the usual instruction to arrive at a decision “from all the evidence given in this courtroom”. Without qualification, that admonition was mentioned on nine occasions during the jury charge.
F. THe Jury questions
[44] While deliberating, the jury asked three questions. Two are relevant to the grounds of appeal that I will address.
[45] The first such question pertains to counts 6 and 7, which allege an assault against SS and an attempt to choke her while she was living at a specified address:
The charges [counts 6 and 7] have the same date range, between January 1, 2000 and July 1, 2002. We have heard in evidence that [SS and BS] moved to [address B] in 2001.
Q. The charge is also specific to [address A]. Can we consider evidence that exists outside of [address A] but inside the date range? Are the two exclusive or linked? Are dates and addresses of no material value and we are simply to focus on evidence within the general time and location specified?
[46] The trial judge took the view that since the jury had already been told that time and location were not material to their deliberations, the jury should simply be told to focus on the evidence. However, defence counsel described the question as concerning because “obviously there’s no similar fact application between counts.” The trial judge said she did not see anything about similar fact evidence in the jury question.
[47] After reviewing the question again in light of defence counsel’s submissions, the trial judge answered the question. She told the jury that counts 6 and 7 related to the allegation that the appellant assaulted and choked SS after interrogating her, and that this allegation was what they were to “focus on”: “All of the evidence that there may be related to those, to that one incident. And I believe for that one incident it would really only be the testimony of [SS] and [the appellant].”
[48] Shortly after, the trial judge brought the jury back in and added that the dates and addresses were not material. At this point, one of the jurors asked the trial judge for further clarification:
The question from the Jury is whether or not we are supposed to focus on the evidence in totality only in relation to [the appellant] and [SS’s] testimony on an event, or whether we are looking at the totality of the full date range of that charge? … I guess in essence, are we re-writing the charge if we consider evidence outside of the specific information that you have directed us to you [sic] in your charge?
[49] The trial judge accepted the juror’s offer to put the question in writing. After the jury retired to do so, defence counsel said, “Well, I think, this is my concern [that it is a] similar fact issue.” He said, “I think there should be an instruction that it’s only related to the evidence on that, for that one occasion that you can’t consider evidence on other occasions.” After the Crown agreed and made a further suggestion, defence counsel responded, “Yeah. But I think that there should be something said that, you know you can’t take one count, evidence from one count to conclude on another count.”
[50] The trial judge proposed a response, but before it was delivered the jury indicated that it no longer required an answer to the question. When the trial judge asked if the jury should nonetheless be brought back on the similar fact evidence issue, defence counsel said that they should be “because implicit in the question was this issue that’s obviously a live issue”. The Crown agreed, offering that the jury was “hung up on… the off the count information” around the events at a particular address.
[51] The trial judge brought the jury back in and then instructed them as follows:
And I will tell you that as regard count six and seven, the evidence to be considered is only the evidence related to the event, or the incident in question which was that incident about the interrogation and [the appellant] coming across the room and choking and hitting [SS], that was [the] urination issue. And if that didn’t, and then so it would be the, all of the evidence, [SS’s] and [the appellant’s] related to that incident. So, and we just wanted to, I would like to emphasize no other evidence outside the evidence related to that incident is to be considered, and no evidence say for instance which may suggest that [the appellant] may have been more likely to commit the offence related to the incident I’ve just described again, is to be considered.
[52] The second question of relevance that the jury asked related to the charge that the appellant was ultimately acquitted on, the park incident. The jury asked whether verbal coercion would constitute force for the assault charge. The trial judge answered “no” and explained what force entailed.
THE ISSUES
[53] Two issues raised by the appellant warrant attention:
A. Did the trial judge err by failing to instruct the jury not to engage in cross-count reasoning and by failing to give a limiting instruction against a general bad character inference (a “propensity instruction”)?
B. Did the trial judge err by giving an ineffective jury charge?
[54] As indicated, I would allow the appeal on the first ground and order a retrial. While I need not decide whether the trial judge erred on the second ground, I will offer brief comments relating to this ground.
[55] The appellant raised a third ground of appeal, that the trial judge erred by giving an insufficient charge on the use of the evidence of the child witnesses, TS and MS, the appellant’s son and daughter, admitted pursuant to s. 715.1 of the Criminal Code, including by failing to caution the jury against undue emphasis when permitting the jury to have the s. 715.1 videos and related transcripts in the jury room during deliberations. Given that I would order a new trial in any event, I will not address the s. 715.1 ground of appeal.
A. Did the trial judge Err by failing to give cross-count reasoning instructions and a propensity instruction?
[56] The trial judge should have instructed the jury not to engage in cross-count reasoning between counts involving different complainants, or counts involving the same complainant. She erred by not doing so.
[57] The trial judge also erred in failing to provide a limiting propensity instruction directing the jury, when considering each charge, “not to rely on the evidence of other counts or other uncharged misconduct as proof that the accused is the sort of person who would commit the offence or offences charged”: R. v. M.(B.) (1998), 1998 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.), at para. 42.
(1) The Similar Fact Evidence Rule
[58] The “similar fact evidence rule” gives rise to the jury directions that have just been described. It serves two functions.
[59] First, the similar fact evidence rule is meant to prevent triers-of-fact from drawing the inference that the accused is the kind of person likely to have committed the offence charged. For clarity, I will describe this component of the similar fact evidence rule as “the rule against general bad character”. The rule against general bad character is enforced in two ways. Evidence called by the Crown “which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible” (emphasis in original): R. v. G.(S.G.), 1997 311 (SCC), [1997] 2 S.C.R. 716, at para. 63, citing R. v. B.(F.F.), [1993] 1 S.C.R. 679, at p. 730. In addition, the rule against general bad character prohibits triers of fact from using evidence that has been admitted for other purposes, but that also reveals the bad character of the accused, to infer that the accused is the type of person likely to have committed the offence in question. Binnie J. described this component of the rule in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 72:
Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law. Discreditable disposition or character evidence, at large, creates nothing but “moral prejudice” and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person. [Emphasis in original.]
[60] The “moral prejudice” that Binnie J. was referring to when describing the prohibited general bad character inference arises from the risk that ascribing morally repugnant acts to the accused will cause triers of fact to infer guilt based on the “forbidden chain of reasoning… from general disposition” (emphasis in original), rather than the specifically relevant evidence that they committed the offence charged: Handy, at para. 139; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 71-72. Bad character evidence also raises the risk that a jury may wish to punish the accused by convicting them of offences because of their other misconduct: R. v. D.(L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, at p. 128; see also R. v. Chamot, 2012 ONCA 903, 302 O.A.C. 104, at para. 62.
[61] The second function of the similar fact evidence rule is to govern the admissibility of bad character evidence called by the Crown where that evidence is not barred by the rule against general bad character. As “an exception” to the rule against general bad character, evidence that goes beyond the prohibited inference and has relevance for other, proper purposes may be admitted pursuant to the similar fact evidence rule, but, once admitted, that evidence is to be used solely for those proper purposes and not for the prohibited inference: D.(L.E.), at pp. 120, 128. The test that is used to ensure that bad character evidence does more than invite the prohibited inference and is worth hearing despite the risk of prejudice it presents was described authoritatively by Binnie J. in Handy, at para. 55:
Similar fact evidence is… presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
[62] Despite the common practice of referring to “similar fact evidence” and the “similar fact evidence rule”, the rules just described are not confined to situations where the bad character evidence reveals conduct that is similar with conduct alleged in the charged event: R. v. B.(L.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at paras. 6, 17, 31-39, leave to appeal refused, [1997] S.C.C.A. No. 524. Both the rule against general bad character and the rule requiring probative value to outweigh prejudice operate in any case where the evidence is of conduct of the accused that is “sufficiently discreditable that it may prejudice the trier of fact against the accused”: B.(L.), at para 20. This broad application is supported by the purpose underlying the similar fact evidence rule. Bad character evidence that is of a “highly prejudicial nature” has the capacity to attract the prohibited inference that the accused is the type of person likely to commit the charged offence: B.(F.F.), at p.735.
[63] Moreover, the application of the similar fact evidence rule is not confined to extrinsic evidence of bad character unrelated to charged offences. Where more than one offence is charged on the same indictment or information (a “multi-count indictment”), evidence offered to prove that the accused committed any one of the charged offences may also reveal the bad character of the accused. The similar fact evidence rule therefore holds that “[e]vidence on one count can be admissible on another if it meets the test for the admission of similar fact evidence”, but not otherwise: R. v. T.C., 2019 ONCA 898, 383 C.C.C. (3d) 341, at para. 48; R. v. Poulin, 2017 ONCA 175, 346 C.C.C. (3d) 191, at paras. 39-40.
[64] To be clear, things are different when assessing the credibility of witnesses who testify on multiple counts: R. v. P.E.C., 2005 SCC 19, [2005] 1 S.C.R. 290. The assessment of the credibility and reliability of a witness’s testimony on one count may properly inform the assessment of the credibility and reliability of that witness’s evidence on any or all counts. However, the substantive testimony that a witness gives about one count cannot be used as affirmative evidence to assist in proving that the accused is guilty of any other count unless a finding has been made that the similar fact evidence rule has been satisfied.
[65] One final point about the operation of the similar fact evidence rule that arises in this appeal. Recall that, in describing the similar fact evidence rule, Binnie J. began by stating that similar fact evidence is “presumptively inadmissible”: Handy, at para. 55. In other words, we start from the position that the Crown cannot present highly prejudicial extrinsic character evidence or use highly prejudicial character evidence, already admitted for other purposes, as proof of the guilt of the accused, unless the Crown shows that the exclusionary presumption under the similar fact evidence rule has been overcome. As a result, and because r. 30 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, so requires, the Crown must bring an application at trial seeking to admit similar fact evidence, or to use evidence admitted to prove one count as proof of guilt on another count: R. v. Nolan, 2019 ONCA 969, 150 O.R. (3d) 647, at para. 35; R. v. Tsigirlash, 2019 ONCA 650, at paras. 23-27; T.C., at para. 58.
[66] A trial judge will therefore err by admitting bad character evidence that is not admissible under other rules of evidence, or by permitting similar fact inferences to be drawn from bad character evidence that has been admitted for other purposes where there has not been a similar fact evidence application and an admissibility ruling. However, such errors will not be fatal on appeal if the evidence would have been admissible as similar fact evidence to support those inferences and the accused had a meaningful opportunity at trial to respond to the use to which the evidence was put: Nolan, at para. 41, T.C., at paras. 55, 59.
(2) Similar Fact Evidence Jury Directions in Multi-Count Indictment Cases
[67] As a general proposition, “when there is a real risk that evidence properly admitted for one purpose could be used by the jury for an improper purpose, the trial judge must caution against that misuse of the evidence”: Chamot, at para. 62. This proposition applies to prejudicial evidence relating to the bad character of the accused, including in multi-count indictment cases.
[68] Two cautions are required. First, where there is a real risk that the jury could rely on evidence properly admitted on one count as proof that the accused committed an offence alleged in another count, and there has not been a similar fact evidence ruling permitting such use, a direction not to engage in cross-count reasoning is to be provided. Specifically, “jurors must be instructed to consider each charge separately and not to use evidence relating to one count as evidence on any of the other counts”: M.(B.), at para. 41; R. v. Rarru, 1996 195 (SCC), [1996] 2 S.C.R. 165, at para. 1.
[69] Second, in multi-count indictment cases, regardless of whether the trial judge has ruled that cross-count reasoning is permissible pursuant to the similar fact evidence rule, where there is a real risk that the jury may draw the prohibited inference, a limiting instruction is to be provided. The jury must be told to use the evidence for the purpose for which it was admitted, and “not to rely on the evidence of other counts or other uncharged misconduct as proof that the accused is the sort of person who would commit the offence or offences charged” (emphasis added): M.(B.), at para. 42.
(3) Analysis: The Jury Charge and the Appellant’s Character
[70] The trial judge failed to give either of the two jury directions just described. The Crown acknowledges that it would have been preferable had the trial judge done so, but offers reasons why the charge was nonetheless adequate in the circumstances of the case. I disagree. For the reasons below, I would reject the Crown’s submissions and find that the trial judge erred in failing to provide a cross-count direction and a limiting instruction.
[71] In fairness to the trial judge, she was not provided with the kind of assistance one would hope for from trial counsel. The Crown took the position that the only discreditable conduct concern related to the evidence, raised by the appellant, of the gun incident for which the appellant was acquitted. In fact, as I have described, the case was laden with prejudicial bad character evidence that triggered the operation of the similar fact evidence rule. Together that evidence showed the accused to be a violent, abusive bully who habitually terrorized his family. This was precisely the kind of evidence that would invite the prohibited inference, and “[e]vidence that imparts a forbidden propensity engages the rule”: R. v. Gareau, 2016 NSCA 75, 342 C.C.C. (3d) 462, at para. 45.
[72] The Crown also suggested that evidence it called as “narrative” and not as proof of guilt may not “fit” as discreditable conduct. This is not correct. Whether evidence constitutes discreditable conduct evidence triggering the similar fact evidence rule is determined by the nature of the evidence, not the use the Crown proposes for that evidence. Where prejudicial bad character evidence unrelated to a charge being prosecuted is offered, the similar fact evidence rule is engaged, whether that evidence forms part of the narrative or not: Gareau, at paras. 51-57; R. v. Taweel, 2015 NSCA 107, 330 C.C.C. (3d) 368, at paras. 105-111, 123; R. v. D.K.N., 2017 ONSC 3890, at paras. 67-71. As the Nova Scotia Court of Appeal put it, “‘Narrative’ isn’t a portal for gratuitous propensity evidence about uncharged similar facts”: Gareau, at para. 51.
[73] Meanwhile, defence counsel (not counsel on the appeal) raised no objection to the admission of any of the extrinsic evidence, some of which was of questionable admissibility, failed after the draft jury charge had been prepared to push his initial request for a propensity direction, and failed to ask for a cross-count direction until a jury question triggered the issue.
[74] While defence counsel’s failure to object to either the draft jury charge or the charge ultimately given may help to explain why the required jury directions were missed, the failure to object is not, in this case, fatal to this ground of appeal. Trial judges are to “properly instruct juries as to the use that those juries can make of evidence which is highly prejudicial to an accused in relation to the accused’s character”: B.(F.F.), at p.733. In this case, the jury was exposed to extensive highly prejudicial evidence of the appellant’s bad character. There is no basis for concluding, as in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, that defence counsel chose not to object for tactical reasons. Nor is there any other basis for holding the appellant responsible for the trial judge’s failure to provide cross-count directions or a limiting instruction. In the circumstances, the “absence of comment or objection by counsel for the accused does not vitiate this duty”: B.(F.F.), at pp. 735-36.
(a) The failure to give cross-count directions
[75] I am persuaded that there was a real risk that, absent proper cross-count directions, the jury would likely consider the whole of the evidence in deciding the appellant’s guilt on each of the charges.
[76] The nature of the evidence offered between counts raised this risk. SS’s evidence had a systematic character to it, from count to count. With respect to two counts, she testified that she had been choked into unconsciousness. With respect to another two counts, that she had been anally raped. Although similarity is not required to trigger the application of the similar fact evidence rule, logically, the similarity of bad character evidence increases the risk of cross-count reasoning. Cross-count reasoning was therefore highly likely in relation to the allegations made by SS.
[77] Cross-count reasoning was also highly likely between complainants. For example, SS testified to being choked repeatedly, describing choking as the appellant’s “thing”. BS said he too was choked. Both BS and TS described disciplinary beatings with belts.
[78] This risk of cross-count reasoning, presented by the nature of the evidence, was enhanced by the manner in which the case was prosecuted. Although the Crown did not expressly invite the jury to use cross-count reasoning, it presented its charges using the narrative of an abusive household. The Crown spoke generally in its opening and closing statements about the years of abuse endured by SS and the children, giving the allegations a thematic cohesion that enhanced the risk that the jury would treat the counts as enmeshed.
[79] In these circumstances, I agree with the appellant. Absent a direction cautioning against cross-count reasoning, both across counts involving different complainants, and across counts involving the same complainant, such reasoning was all but inevitable. Cross-count directions should have been provided.
[80] I would not accept the Crown’s arguments to the contrary. I will begin with the Crown’s contention that cross-count reasoning was legally permissible with respect to the counts involving SS. First, even if true, this would provide no answer for the trial judge’s failure to give a cross-complainant, cross-count direction. Second, and more importantly, I do not accept the Crown’s claim that cross-count reasoning was legally permissible on the counts involving SS.
[81] To be clear, I do accept that, had the Crown applied under the similar fact evidence rule to permit cross-count reasoning on the SS counts, the application may well have been granted. Evidence of repeated acts of abuse of a victim are often admitted as similar fact evidence because they yield relevant and probative inferences, for example: that the accused is specifically disposed to act violently towards the victim (R. v. Batte (2000), 145 C.C.C. (3d) 49 (Ont. C.A.), at paras. 102-103); as proof of motive or animus to harm or dominate the victim (R. v. F.(D.S.), (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.), at para. 25); or (provided such concerns have fallen into issue) to explain a delay in leaving the relationship or in reporting the abuse: F.(D.S.), at para. 26; R. v. A.L., 2020 BCCA 18, 385 C.C.C. (3d) 407, at paras. 139, 191, leave to appeal refused, [2020] S.C.C.A. No. 83. The common availability of probative lines of reasoning, coupled with the reduced risk that triers of fact will engage in general propensity reasoning in the face of such specifically relevant evidence, often provides a commodious pathway to admission: see, for example, R. v. Pasqualino, 2008 ONCA 554, 239 O.A.C. 59, at para 31; R. v. Sandhu, 2009 ONCA 102, 265 O.A.C. 206, at para. 16.
[82] However, the Crown did not apply to use the evidence provided by SS across counts, nor did the Crown identify any cross-count inferences that she was seeking. Indeed, the Crown specifically held out during the pre-charge conference that she was “not going to be asking the jurors to look at similar fact”. Even during the post-jury charge colloquy that occurred after the jury asked about counts 6 and 7, the Crown agreed with defence counsel’s belated suggestion that the jury should be directed not to engage in cross-count reasoning. The Crown’s assurances that it was not relying on similar fact evidence or seeking cross-count reasoning may well have influenced defence counsel’s closing submissions to the jury. It is not in the interests of justice to permit the Crown to raise the cross-count admissibility of evidence on the counts involving SS for the first time on appeal, after the trial Crown disclaimed such use during the trial.
[83] I also reject the Crown’s related submission that the evidence “about the nature of the relationship” is so enmeshed between counts that cross-count reasoning is necessarily permissible. There is no question that, in many cases, much benign or mundane background evidence about the nature of a relationship between an accused person and a complainant, such as their marital status or biographical information, will be narrated during a trial. This kind of narrative evidence permits the relevant story to be told in a natural manner and is readily admissible across counts. Since it is not discreditable, it is not caught by the rules now under consideration.
[84] However, where the evidence “about the nature of the relationship” raises a real risk of prejudice because it discloses bad character, it is subject to the rules described, not immune from them. For example, evidence showing that the appellant had an ongoing abusive relationship with SS, or that he frequently interrogated SS using physical force or threats, does not become exempt from the similar fact evidence rule because it tells us something about the nature of their relationship. Like the term “narrative”, the “nature of the relationship” label cannot be allowed to operate as an unscrutinised gateway for the admission of highly prejudicial information. In A.L., Fitch J.A. of the British Columbia Court of Appeal did not say otherwise. In the case before him, he concluded that the probative value of the bad character evidence outweighed the risk of prejudice it presented.
[85] It is instructive that, in making this submission before us, when the Crown addressed the crucial question of the use it proposed to make of the “relationship evidence” in this case, it suggested two uses: to demonstrate the control the appellant exerted over SS and her children, and as explanation of delayed disclosure. These uses are, of course, two of the permissible inferences that are available when similar fact evidence is admitted. In substance, the submission that cross-count inferences relating to the counts are permissible to show the nature of the relationship is a more obscure reprise of the argument just rejected that cross-count evidence was admissible in this trial. I would therefore reject it.
[86] Nor do I accept the Crown’s contention that cross-count directions were not needed in this case because the circumstances reveal that the jury understood not to engage in cross-count reasoning, even without such directions.
[87] First, I do not accept the Crown’s submission that the jury would have gleaned that cross-count reasoning is impermissible from the trial judge’s detailed charge linking relevant evidence with each count. There is a difference between a judge earmarking the key evidence relating to a specific allegation, and a judge telling a jury not to allow evidence called on other charges to influence their decision. The former does not remove the need for the latter. Moreover, it should be a routine exercise in multi-count jury cases for the trial judge to link relevant evidence to the specific charges. If doing so was sufficient to replace the need for cross-count directions, such directions would be rarely rather than routinely required.
[88] Nor do I agree that the fact that the jury acquitted the appellant of the charge in count 10 (the park incident) shows that the jury did not engage in cross-count reasoning. This argument presupposes that the jury would not have had a reasonable doubt on count 10 if it drew inferences from other counts. There is no basis to believe this. The jury may well have concluded that the accused is the kind of person who would commit the offences charged, including count 10, yet still have acquitted him on that count because of the inconsistent versions of the incident offered by SS.
[89] Further, I have no confidence that the jury’s question about counts 6 and 7 shows that the jury knew that they could not engage in cross-count reasoning. Certainly, defence counsel at trial drew the opposite inference, concluding that the question showed the need for a cross-count direction. Defence counsel’s thinking, of course, is that if the jury understood that they could rely solely on the evidence offered on the specific charge, why would they ask whether they could use other evidence?
[90] In any event, the question asked by the jury did not relate to cross-count reasoning. The parties agree that when the jury was asking whether they could use evidence about an event that did not occur at address “A” in determining counts 6 and 7, they were likely alluding to the black eyes incident. That incident was not the subject of a charge. Given this, it is difficult to see how the jury’s question can be taken as assurance that the jury understood not to engage in cross-count reasoning.
[91] Nor can it be inferred that the jury would have understood not to draw cross-count inferences generally from the trial judge’s specific admonition in response to the jury question not to consider evidence “outside the evidence related to that [charged] incident [in count 6 and 7]”. Indeed, there is a risk that telling the jury not to do so only with respect to count 6 and 7 could have led the jury to infer that cross-count reasoning is otherwise permitted.
[92] The trial judge was required to give cross-count directions in this case relating both to cross-count reasoning between counts involving the same complainant, and cross-count reasoning between counts involving different complainants. This was not done, and these non-directions amounted to mis-directions. I would allow this ground of appeal.
(b) The failure to give a propensity direction
[93] The trial judge also erred in failing to provide a propensity direction relating to both charged and uncharged conduct. Once again, there was a real risk that without such direction the jury would engage in the prohibited line of reasoning that the accused is the kind of person who would likely commit the offences charged, thereby unfairly lowering the Crown’s burden.
[94] This case is not a single-complainant case where no propensity direction is required because permissible uses of the discreditable conduct evidence are so clear that there is no real risk that a jury would engage in propensity reasoning: R. v. Beausoleil, 2011 ONCA 471, 283 O.A.C. 44, at paras. 20-21, 28; R. v. M.T., 2012 ONCA 511, 294 O.A.C. 111, at para.88. As indicated, there were no permissible inferences available from the discreditable conduct in this case because the Crown said it was not relying on similar fact evidence.
[95] Even leaving this aside, the risk of propensity reasoning was high. This case involved multiple complainants, elevating the risk. The evidence cast the appellant in a contemptible light. Together, it showed him to be a wealthy drug dealer and a pimp, who controlled SS for his own sexual gratification, brutalizing and demeaning her by anally raping her and beating her mercilessly. The evidence showed that for years he left SS to care for children he did not want, before moving in with SS and the children and then repeatedly beating and traumatizing them while holding SS captive. Together, this profile of the appellant was highly prejudicial. The risk that this evidence would be used to show the appellant’s contemptible character was intensified by the detailed recitation by the trial judge, in the witness-by-witness portion of her charge, of almost every grain of prejudicial information, even where it bore no permissible relevance to the decision the jury would have to make.
[96] In making the following comment, I do not want to be taken as suggesting that all the discreditable conduct evidence presented at the appellant’s trial needed to be heard, but certainly much of it did. The words of Doherty J.A., in Chamot, at para. 61, are therefore apt:
While the search for the truth demanded that the jury hear evidence that put [the appellant] in a very bad light, that search equally demanded that the jury understand the purposes for which it could not use that evidence in its deliberations. No such limiting instruction was given.
[97] The Crown argues that other instructions provided by the trial judge, coupled with Crown submissions, sufficed in communicating to the jury that they should not engage in general propensity reasoning. Once again, I disagree.
[98] The propensity direction given by the trial judge relating to the appellant’s criminal record cannot be treated as a direction not to engage in propensity reasoning generally: Chamot, at paras. 65-66. Indeed, the risk that a jury might engage in propensity reasoning can be enhanced where a targeted direction is given not to use propensity reasoning relating to the criminal record of the accused, but not with respect to other discreditable conduct: R. v. N.(R.K.) (1997), 1997 1271 (ON CA), 114 C.C.C. (3d) 40, (Ont. C.A.) at p. 47.
[99] For similar reasons, the fact that the trial judge told the jury, in response to its count 6 and 7 question, that they were not to use evidence “which may suggest that [the appellant] may have been more likely to commit the offence related to the [count 6 and 7] incident” does not suffice. Once again, this direction is confined to reasoning related to counts 6 and 7 and, in any event, is not clear in describing the prohibited propensity inference.
[100] Nor can the fact that the trial Crown asked the jury not to use the gun incident to convict the appellant of these charges give assurance that the jury knew to avoid propensity reasoning. Not only does this request not speak to propensity reasoning, it is confined to one item of evidence, and it comes from the Crown instead of the trial judge. It is the trial judge who has the relevant obligation and who, unlike the Crown, has the authority to direct the jury.
[101] Occasionally, courts have rejected appeals based on the failure of a trial judge to give a propensity direction where such failure did not prejudice the accused, but, instead, spared the accused from the reciprocal need for the judge to recite the damaging permissible uses of the similar fact evidence: Batte, at paras. 113-114; Sandhu, at para. 17; R. v. N.(T.), 2011 ONCA 114, at paras. 20-22. The Crown argues that we should reject this ground of appeal for the same reason. I would reject that submission for two reasons.
[102] First, as explained, the trial Crown did not apply for the admission of similar fact evidence, or identify permissible inferences. Instead, she made it clear that she was not relying on similar fact evidence. There were therefore no permissible similar fact inferences to be communicated to the jury that would work against the interests of the accused.
[103] Second, I accept the appellant’s submission that the discreditable conduct evidence in this case was so highly prejudicial that a propensity direction would have benefited the appellant, even if there had been permissible uses that would then have been related to the jury.
[104] The trial judge erred in failing to give a propensity direction. I would allow this ground of appeal.
B. DID THE TRIAL JUDGE ERR BY GIVING AN INEFFECTIVE JURY CHARGE?
[105] I have described the jury charge above in paras. 39-43. The appellant claims, in substance, that the jury charge was so excessively long and so laden with unnecessary information in what was a straightforward credibility case that it was ineffective. The appellant urges that the trial judge failed to discharge her obligation to “decant and simplify” by engaging in the requisite “careful and considered culling… to avoid unnecessary, inappropriate and irrelevant legal instruction of a kind that might well divert the jury’s attention”: R v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 50-52, citing R. v Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, at para 13; and R. v. Pintar (1996), 1996 712 (ON CA), 110 C.C.C. (3d) 402 (Ont. C.A.), at p. 414. Not only was the charge too confusing to give the requisite guidance to the jury, the appellant submits that the trial judge’s inclusion in the charge of complicated legal directions on matters that were not in issue – such as whether the child complainants consented to the assaults against them, whether SS consented to the alleged sexual assaults, and whether the accused knew there was no consent to the assaults – was highly prejudicial to the appellant by distracting the jury from the real issue in the case, which was credibility, and by creating the impression that he was trying to defend the charges on these unrealistic bases.
[106] The Crown argued that while the trial judge’s charge was imperfect, it was “functionally adequate”, enabling jurors to understand the issues involved, and that it fell within the broad discretion allowed to trial judges in crafting jury charges: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras.11-13. It provided the fundamentals, including by tying the evidence to the specific allegations laid, the primary infirmity in cases such as Newton, at para. 14, and R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101, at para. 40.
[107] I need not resolve this ground of appeal because I would order a new trial as a result of the failure by the trial judge to give cross-count directions and a propensity direction. This case nonetheless provides an opportunity to reinforce two key considerations in crafting jury charges.
[108] First, “a bulk recitation of all the evidence heard at the trial, without discrimination or analysis, is of no assistance to the jury”: Barreira, at para. 30. Indeed, as this case shows, it is apt to do more harm than good. The jury charge was unnecessarily long in what was a straightforward case. Close to half of the charge, 84 of the 192 transcript pages, was dedicated to summarizing testimony that the jury had heard directly. This not only taxed the powers of the jurors’ concentration, increasing the risk of confusion and inattention, it resulted in the prejudicial repetition of a significant amount of collateral bad character evidence. The trial judge would have been better advised to have forgone this part of the charge and focussed instead on the summary she offered of the material evidence relevant to the issues.
[109] Second, instead of identifying the legal issues that required explanation, the trial judge included large extracts from a model charge manual relating to matters not in issue. In Rodgerson, at paras. 51-53, Moldaver J. counselled against doing so and urged trial judges to isolate relevant legal instructions. Legal directions are often conceptually challenging. In the interests of efficiency and focus, jurors should not be taxed with legal instruction on matters that are not in issue, as occurred in this case.
[110] Indeed, one of the legal issues discussed in the charge was not only not a live issue but was not properly before the jury. The children complainants were minors, legally incapable of consenting to the alleged assaults, yet the jury was educated in the law of consent relating to the assault charges against the children, including factors that vitiate consent, none of which applied.
[111] It is understandable that trial judges may want to ensure that they have identified all requisite elements of a charged offence for the jury. However, in Newton, at para. 11, Laskin J.A. did not say that all elements of a charged offence should be included in every jury charge. He said that a charge should include “the legal framework, typically the elements of the offence or offences with which the accused is charged” (emphasis added). There is no need to educate jurors about elements of a charge or associated legal doctrine (such as factors that can vitiate consent, or alternative bases for finding mens rea such as recklessness in this case) where these matters do not arise. Uncertainty about what to include can easily be settled by raising the issue directly with counsel during the pre-charge conference to ascertain whether any elements of the offence can be omitted from the jury direction as immaterial to the case.
CONCLUSION
[112] For the reasons provided, I would allow the appeal, set aside the convictions on all charges, and order a retrial.
Released: “D.M.P.” October 23, 2020
“David M. Paciocco J.A.”
“I agree. I.V.B. Nordheimer J.A.”
“I agree. Thorburn J.A.”
[1] Most of the allegations are identified in the indictment by time frame and by the residence address where the charge is alleged to have occurred. I will identify the charged incidents using time frame alone in order to reduce the use of biographical information that could assist in identifying the complainants.