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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221206 DOCKET: C66813 Feldman, Zarnett and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
R. M. Appellant
Counsel: James Lockyer, for the appellant Nicolas de Montigny, for the respondent
Heard: September 6, 2022
On appeal from the conviction entered on January 25, 2019 by Justice Michael R. Gibson of the Superior Court of Justice, sitting with a jury.
Copeland J.A.:
[1] The appellant appeals his conviction, following a trial by jury, on one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46.
Background
[2] The appellant and the complainant lived together in a relationship for approximately three years, and have one daughter. Over time, the relationship grew distant. The complainant alleged that several days after she informed the appellant of another relationship she had pursued, he sexually assaulted her in his bedroom.
[3] According to the complainant’s evidence, she told the appellant about the other relationship in mid-November 2015. Because the appellant said he needed time to process that information, the complainant began sleeping in their daughter’s bedroom. On the morning of November 19, 2015, the complainant went into the appellant’s bedroom to talk about their relationship. The complainant testified that the appellant grabbed her neck and pushed her onto the bed, pulled her leggings off, and forcibly penetrated her. She testified that during the assault, the appellant called her a “slut” who “needed to be punished”, and made degrading comments about the other person with whom she had had a relationship. The complainant testified she was crying during the assault.
[4] The only live issue at trial was whether the incident of sexual contact that formed the basis of the charge happened. The appellant did not testify. The defence position advanced through cross-examination and in closing submissions was that the sexual contact the complainant alleged did not happen.
Grounds of appeal
[5] The appellant raises three grounds of appeal:
- The trial judge erred in failing to give the jury a limiting instruction on the use of evidence of the appellant’s bad character and prior discreditable conduct;
- A miscarriage of justice was caused by Crown counsel leading impermissible oath-helping evidence in relation to the complainant;
- A number of other specific issues at trial (detailed below) resulted in a miscarriage of justice.
[6] As I explain below, I would allow the appeal and order a new trial because of the trial judge’s failure to give the jury a limiting instruction regarding the use of significant evidence tendered at trial of the appellant’s prior discreditable conduct. With respect to the second ground of appeal, I agree with the appellant that one aspect of Crown counsel’s examination-in-chief of the complainant constituted oath-helping. In light of my conclusion that a new trial is required on the first ground, it is not necessary to decide if the oath-helping questions standing alone would warrant a new trial. With respect to the third ground, I would not accept most of the appellant’s submissions; however, because there will be a retrial, I address in more detail one issue of concern in relation to how a purported “admission” pursuant to s. 655 of the Criminal Code was handled.
(1) The trial judge erred in failing to provide a limiting instruction on the use of evidence of the appellant’s prior discreditable conduct
[7] The appellant argues that the trial judge erred in law in failing to provide a limiting instruction to the jury on the permissible use of evidence of bad character and prior discreditable conduct [^1] of the appellant. The appellant accepts that “most, if not all” of this evidence was admissible, and only objects to the failure of the trial judge to give a limiting instruction.
[8] The Crown argues that the failure to give a limiting instruction in relation to the evidence of the appellant’s prior discreditable conduct was not a reversible error in the circumstances of this case. The evidence was properly admitted for other purposes, and the misconduct it disclosed was markedly less serious than the allegations underpinning the sexual assault charge. The standard for a jury instruction is adequacy, not perfection: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 20. The jury instructions were sufficient in this case. The Crown also notes that trial counsel for the appellant did not request a limiting instruction.
[9] There was significant evidence led at trial painting the appellant as an unlikeable and abusive man, who was controlling of and demeaning towards the complainant. This evidence was led in the testimony of the complainant and both of her parents. The discreditable conduct evidence about the appellant included:
- that the complainant was afraid of the appellant and scared to be in the same room as him;
- that the appellant was verbally abusive towards the complainant and demeaning towards her;
- that the appellant threatened the complainant on the day she went to police (approximately five months after the alleged sexual assault);
- the appellant was described as emotionally abusive, controlling, aggressive, and degrading towards the complainant;
- that when the complainant became pregnant with their daughter, he wanted her to get an abortion. When she refused to do so, within days, he referred to the pregnancy as “entrapment”;
- that the appellant had the complainant arrange an abortion when she became pregnant a second time;
- that the appellant showed no interest in their daughter after the complainant went to police;
- that at one point in their relationship, the appellant would not give the complainant money, even for groceries, and he later did not live up to his post-break-up support obligations;
- that the complainant and her parents were petrified that the appellant would abduct his and the complainant’s daughter and take her to Mexico.
[10] Most of this evidence was led by Crown counsel during the examination-in-chief of the complainant, and to a lesser degree during the examination-in-chief of her parents. However, the defence pursued the evidence in cross-examination.
[11] No motion was brought by Crown counsel regarding the admissibility of the discreditable conduct evidence. There is no discussion on the record indicating that the parties had reached an agreement about admissibility of this evidence. As prior discreditable conduct evidence is presumptively inadmissible, there should have been a discussion about the admissibility of this evidence on the record, or, if admissibility was contested, a voir dire: see R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at paras. 93-114, 121-132; R. v. J.H., 2020 ONCA 165, at paras. 52-59.
[12] I flag the issue of the absence of a hearing or any discussion on the record about the admissibility of this evidence not to suggest the evidence would have been inadmissible had a proper admissibility inquiry been conducted. The appellant does not argue that the evidence was inadmissible. He concedes that most, if not all, of it was admissible as part of the narrative and in relation to the defence theory of the complainant’s motive to fabricate. But the admissibility inquiry (or an on-the-record waiver or agreement as to admissibility) is important because it focuses the parties and the trial judge on the probative value of the evidence, and the risk of prejudice. Both of these aspects inform the instructions to the jury on permitted and prohibited uses of prior discreditable conduct evidence which is admitted.
[13] In this case, the trial judge gave no instruction to the jury on the prior discreditable conduct evidence. He did not instruct either on what were permissible uses for the evidence of the appellant’s prior discreditable conduct, or prohibited uses of this evidence. The trial judge referred to the evidence only in the most general terms, for example, referring to evidence of “how their relationship evolved over time”, and to evidence of their “interactions” in the time period after the alleged sexual assault.
[14] The question on appeal is whether the failure to give the jury any instructions on the use of this evidence – in particular, the failure to give a limiting instruction explaining prohibited uses of the evidence – is a reversible error: R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at paras. 84-85; Z.W.C., at para. 109.
[15] Whether the failure to give a limiting instruction regarding propensity use of prior discreditable conduct evidence amounts to reversible error depends on a variety of circumstances, which must be considered in the context of the evidence and issues raised in a particular case. Factors that may be relevant include: (i) the nature and extent of the prior discreditable conduct evidence at issue; (ii) the issue(s) at trial to which the discreditable conduct evidence was properly relevant; (iii) the relative gravity of the prior discreditable conduct in relation to the misconduct charged; (iv) the likelihood that such an instruction would confuse the jury or unnecessarily draw attention to the discreditable conduct; and (v) other factors which bear on the risk that such evidence would be used improperly by the jury: R. v. Beausoleil, 2011 ONCA 471, 277 C.C.C. (3d) 50, at para. 20; R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 100; M.T., at paras. 87-90.
[16] Considering all of the circumstances in this case, I conclude that the failure of the trial judge to give the jury a limiting instruction on the use of the prior discreditable conduct evidence constitutes reversible error which requires a new trial.
[17] The prior discreditable conduct evidence led in this case was extensive. It was led through the testimony of all of the Crown witnesses – the complainant and both her parents. It permeated the trial. I accept that the evidence was properly admissible as narrative, to assist in understanding the relationship between the appellant and the complainant, and in relation to the defence theory of the complainant’s motive to fabricate. However, it was not admissible for propensity use. And in my view, the dangers of the jury engaging in propensity reasoning were significant.
[18] In the absence of a limiting instruction, there was significant danger of prejudice as described in Handy, in particular, of moral prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-40, 139; Z.W.C., at paras. 102-104. This was particularly so given the factual circumstances alleged by the complainant about the sexual assault. The complainant’s evidence about the alleged sexual assault suggested that it was a punishment for her other relationship. The prior discreditable conduct evidence painted the appellant as a person who was controlling, demeaning, and vindictive towards the complainant. There was a significant risk in this case, in the absence of a limiting instruction, that the jury would naturally engage in propensity reasoning – concluding that as a controlling, demeaning, vindictive person, the appellant was the type of person who would commit the offence the complainant alleged.
[19] Counsel for the Crown argues in part that the risk of prejudice was limited by the fact that the prior discreditable conduct evidence about the appellant was of acts less serious than the sexual assault that was being tried, relying on this court’s decision in M.P., at para. 100.
[20] In some cases, the fact that the prior discreditable conduct alleged is less serious than the offence(s) charged may reduce the need for a limiting instruction. This would seem to be particularly so where the prior discreditable conduct is not of the same nature as the offence(s) charged: M.T., at para. 87. But the focus of the inquiry on appeal is whether in all the circumstances, in the absence of a limiting instruction, there is a real risk of prejudice in the sense that the jury would misuse the evidence.
[21] In my view, in this case, there was such a risk. The Crown’s argument that the prior discreditable conduct evidence was less serious than the offence charged misses the point in relation to the nature of the prejudice in the particular circumstances of this case. The reason the prior discreditable conduct evidence was prejudicial is that it could have been seen by the jury as of a similar nature as the alleged sexual assault – suggesting a continuum from the appellant’s prior discreditable behaviour to him being the type of person who would commit the sexual assault with which he was charged. Without a specific instruction from the trial judge telling the jury that the evidence could not be used to reason that based on his history, the appellant was the type of person who would commit the offence alleged by the complainant, the jury would not have understood that this line of reasoning was impermissible.
[22] Indeed, this danger was aggravated by the fact that the trial judge gave the jury what was effectively a limiting instruction about evidence of prior conduct of the complainant that he appeared to have a concern the jury might misuse. He instructed the jury that they had heard evidence about matters on which they may have personal views, including that the complainant had an abortion at one time, and had a same-sex relationship. He instructed the jury that they must set aside their personal views and act impartially, and that the complainant’s sexual orientation and past abortion were irrelevant to assessing her credibility.
[23] There is nothing objectionable about this instruction in relation to the complainant. But it aggravated the absence of a limiting instruction about the extensive evidence of the appellant’s prior discreditable conduct in two ways. First, having been given a limiting instruction in relation to evidence that could be perceived as discreditable about the complainant, the absence of a similar limiting instruction regarding discreditable conduct evidence about the appellant would likely have signalled to the jury that there was no restriction on how they could use the discreditable conduct evidence about him. Second, the presence of a limiting instruction about evidence that could be perceived as discreditable about the complainant, but no limiting instruction about discreditable conduct evidence about the appellant, made the jury instructions unbalanced.
[24] I am also of the view that a limiting instruction would not have confused the jury, or unnecessarily drawn the jury’s attention to the prior discreditable conduct evidence.
[25] The significance of the fact that trial counsel (not Mr. Lockyer) neither asked for a limiting instruction nor objected to the trial judge’s failure to give one must also be considered. Trial counsel made use of the appellant’s prior discreditable conduct towards the complainant to argue that it gave the complainant a motive to fabricate the sexual assault allegation against the appellant. Trial counsel cross-examined the complainant about aspects of the discreditable conduct evidence. In closing submissions he argued that the complainant’s evidence about the appellant being “emotionally distant, aloof, condescending, and controlling” and making her get an abortion showed an animus on the part of the complainant against the appellant that provided a motive to make a false allegation against him.
[26] But this use of the evidence by the defence does not explain the failure to request a specific limiting instruction to prevent misuse by the jury of the evidence.
[27] I can see no tactical reason for trial counsel not to request a limiting instruction. There was a tactical reason not to object to the admissibility of the evidence, because of its relevance to the defence theory of the complainant’s motive to fabricate. But there was no tactical reason not to request a limiting instruction to make clear to the jury that propensity reasoning was impermissible. Indeed, when counsel for the Crown was asked about this issue during oral submissions, he was unable to point to any apparent tactical benefit to the appellant in not seeking a limiting instruction on this evidence at trial. As I have explained above, there was a significant risk in the circumstances of this case that the jury would engage in propensity reasoning in the absence of a limiting instruction.
[28] In oral submissions, counsel for the Crown argued that if the court finds that the trial judge erred in failing to give a limiting instruction on the discreditable conduct evidence, the error caused no substantial wrong or miscarriage of justice. However, he specified that he was not relying on the “overwhelming case” branch of the proviso.
[29] In my view this is not an appropriate case to apply the curative proviso. Given the significant risk that the jury would engage in propensity reasoning which I have explained above, I am not persuaded that the error was so minor as to be harmless. As I have noted, the Crown does not argue that its case was so overwhelming that the verdict would necessarily have been the same absent the error by the trial judge.
[30] In sum, in the circumstances of this case, the failure of the trial judge to give a specific limiting instruction on the use of the evidence about the appellant’s discreditable conduct constitutes reversible error and requires that a new trial be ordered.
(2) Crown counsel at trial engaged in impermissible oath-helping
[31] The appellant argues that two portions of the Crown’s examination-in-chief of the complainant constituted impermissible oath-helping.
[32] The two passages at issue were at the start and the end of the examination-in-chief of the complainant.
[33] The first impugned passage occurred right at the start of the examination-in-chief of the complainant, after Crown counsel (not Mr. de Montigny) had asked her age and what she did for a living:
Q. Can you tell us how you feel about being here today? A. I’m very anxious about being here and very nervous. Q. Can you tell us why you’re here today? A. I’m here because when it all comes down to it, I honestly believe that the accused should be held accountable for his actions.
[34] At that point, the trial judge interjected. In the presence of the jury, he said that the purpose of a witness giving evidence is to testify about what they perceived and experienced. He stated that a witness, and in particular, the complainant, should not be expressing an opinion on what disposition should be made. After that interjection by the trial judge, Crown counsel proceeded to elicit the complainant’s evidence about the substance of the allegation before the court.
[35] The second passage was the final two questions asked by Crown counsel in the examination-in-chief:
Q. I think this is my question for you, [complainant’s name]: Were you ever given the opportunity not to testify in this case? A. Yes, I was. Q. Okay. And have you chosen to testify today of your own free will? A. I have.
[36] The Crown argues that the first passage is not oath-helping and was just an open-ended question to begin the examination. With respect to the second passage, the argument is that there was no prejudice to the appellant, and that the concerns about oath-helping expressed in sources such as The Commission on Proceedings Involving Guy Paul Morin are limited to the particularly fraught context of jailhouse informers or other unsavoury witnesses: The Honourable Fred Kaufman, The Commission on Proceedings Involving Guy Paul Morin, vol. 1 (Ontario: Ministry of the Attorney General, 2008) at pp. 490-556. The Crown supports the argument that there was no prejudice by noting that the impugned questions were a small part of the examination-in-chief of the complainant, and that there was no objection by trial counsel to this line of questioning and no request for a limiting instruction.
[37] In my view, the first impugned passage of the examination-in-chief of the complainant would not be objectionable, if it stood alone. The questions posed by Crown counsel appear to be intended to put the complainant at ease, and then to direct her to the subject matter of the allegation, along the lines of, “what brings you here today?” The complainant responded to the second question with inadmissible evidence. But the trial judge immediately intervened and clearly said that the response was irrelevant.
[38] However, the second passage, at the end of the examination-in-chief, was clearly intended to elicit that the complainant had been given the option not to attend and testify at the trial, and that, having been given that option, she chose “of [her] own free will” to attend and testify. The questions are notable for their placement at the end of the examination-in-chief, as it suggests Crown counsel intended them to give a strong finish to the examination.
[39] These questions should not have been asked. The fact that the complainant had been offered the opportunity not to testify, but chose to attend and testify anyway, was not relevant to any issue at trial. This line of questioning by Crown counsel at trial sought to bolster the complainant’s credibility. The impermissible inference lying behind this type of questioning is that she was more likely to be telling the truth because even when given the opportunity not to testify, she made the choice to come to court (because she was telling the truth).
[40] This is a type of oath-helping. The rule against oath-helping prohibits the reception of evidence solely for the purpose of establishing the truthfulness of a witness: R. v. J.H., 2020 ONCA 165, at paras. 93-95, 103; R. v. B.(F.F.), [1993] 1 S.C.R. 697, at p. 729; R. v. Llorenz (2000), 145 C.C.C. (3d) 535 (Ont. C.A.), at paras. 27-28; R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at paras. 31, 33-35.
[41] The line between impermissible oath-helping and relevant evidence which also bears on credibility is not always clear: Llorenz, at para. 28. However, the questions asked by Crown counsel at the end of the complainant’s examination-in-chief were on the wrong side of the line.
[42] In addition, the evidence elicited by Crown counsel at the end of the cross-examination sought to rely on the inference that the complainant was more credible because she exposed herself to the “unpleasant rigours of a criminal trial.” The difficulty with this type of reasoning is that using the fact that a complainant pursued a complaint to bolster their credibility is inconsistent with the presumption of innocence: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 87-89.
[43] A further mischief raised by the specific type of oath-helping questions asked in this case is their potential to raise a collateral issue of the nature of the offer allegedly made to the witness not to testify. Who made the offer? When? In what form? Was it a genuine offer? Why was it made?
[44] Trial counsel made no objection to this line of questioning. Nor was the evidence elicited mentioned either in the closing submissions by Crown counsel at trial or in the trial judge’s final instructions.
[45] As a new trial is required due to the failure to provide a limiting instruction on evidence of prior discreditable conduct, it is not necessary to decide if a new trial would have been required on the oath-helping ground standing alone.
(3) Did other issues at trial result in a miscarriage of justice?
[46] The appellant raises several other grounds of appeal which he argues taken together resulted in a miscarriage of justice. I am not persuaded that these other issues resulted in a miscarriage of justice.
[47] The appellant argues that the evidence of the complainant’s prior statements to her parents about the alleged sexual assault should not have been admitted into evidence as they were prior consistent statements, and in any event, should have been the subject of a voir dire on admissibility prior to the evidence being led.
[48] The Crown agrees that there should have been an admissibility voir dire in relation to the complainant’s prior consistent statements disclosing the alleged sexual assault, but argues that the evidence was properly admissible as narrative, and the trial judge properly instructed the jury as to its limited use.
[49] I agree with the Crown that in the circumstances of this case, the prior statements were properly admissible as narrative. [^2] The trial judge gave an appropriate limiting instruction to the jury about the use of the prior consistent statements. That instruction included that the prior consistent statements could not be used for the truth of their contents, and that repetition did not make something more likely to be true. The trial judge also instructed the jury that the only purpose for which they could use the prior statements was “as part of the narrative; that is to help you understand the flow of events.”
[50] As the trial judge belatedly recognized, and as both appellate counsel agree, the prior statements should have been the subject of a voir dire prior to being admitted. The starting point with prior consistent statements is that they are not admissible, subject to various exceptions: R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at paras. 96-100. As such, the party seeking to tender prior consistent statements, in this case the Crown, should seek a ruling on admissibility prior to tendering such evidence. However, as the evidence was properly admissible as narrative in this case, and a limiting instruction was given to the jury, I see no reversible error.
[51] The appellant argues that the trial judge failed to sufficiently emphasize in the jury instructions the evidence of the complainant’s tendency to lie. This evidence was adduced during the testimony of her parents.
[52] I would not give effect to this ground of appeal. The trial judge reviewed with the jury the evidence from both of the complainant’s parents about issues she had had with lying when she was a teenager. Thus, the jury’s attention was directed to the issue of the complainant’s history of lying in the final instructions. Defence counsel at trial did not seek a more specific instruction. Trial judges are accorded flexibility in the manner in which they review evidence in a jury instruction, and are not required to refer to every piece of evidence: Goforth, at para. 22; R. v. Campbell, 203 O.A.C. 360 (C.A.), at para. 5; R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508), at para. 11.
[53] The appellant argues that the trial judge erred in leaving the included offence of simple assault with the jury. The appellant notes that leaving assault as an included offence had not been discussed at the pre-charge conference. The appellant argues that the complainant’s evidence stood or fell as a whole.
[54] The Crown acknowledges that it would have been preferable to discuss the issue of leaving assault as an included offence at the pre-charge conference. But it argues that although common assault was an unlikely verdict on the evidence, it was properly left with the jury based on the complainant’s evidence that the appellant grabbed her neck and threw her on the bed prior to sexually assaulting her.
[55] I would not intervene in the trial judge’s decision that the evidence was sufficient to leave common assault with the jury as an included offence. There was an evidentiary basis to do so based on the complainant’s evidence that the appellant grabbed her neck at the outset of the alleged sexual assault. Having said this, although it was theoretically open to the jury to believe part, but not all, of the complainant’s evidence, and thus come to a verdict of not guilty of sexual assault, but guilty of common assault, this seems like a highly improbable result. Consideration should be given in the retrial to whether the additional complexity of leaving simple assault with the jury is warranted when the case appears to stand or fall on the complainant’s credibility: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 44-46.
[56] However, even if it was an error to leave common assault as an included offence, given the jury’s verdict of guilt on the offence of sexual assault as charged, I cannot see any prejudice to the appellant. I note that whether or not assault as an included offence should be left to the jury on the retrial will depend on the trial judge’s assessment of the evidence at the retrial.
[57] The last issue deserves more in-depth comment. This issue concerns the manner in which both Crown and defence counsel at trial and the trial judge dealt with the defendant’s purported “admission” that if the sexual contact described by the complainant happened, it was non-consensual.
[58] Midway through the trial, Crown and defence counsel filed with the court a document entitled “Admission of Fact by Defence pursuant to s. 655 of Criminal Code”. The document states:
It is admitted by the defence that if a sexual assault was committed by the Accused, [R.M.], on the person of [the complainant], as alleged at this trial, it was without her consent. That is, lack of consent as an element of the offence of Sexual Assault is admitted.
[59] The trial judge accepted this admission, and entered it as an exhibit. At the time the admission was marked as an exhibit, the trial judge briefly reiterated to the jury the instruction that evidence can be in the form of witness testimony, documents or other things made exhibits, and admissions, and read the purported admission to the jury. He later referred to the purported admission in the final instructions to the jury on the required elements of sexual assault, including proof of non-consent and proof of knowledge [^3] by the appellant of the complainant’s non-consent.
[60] The appellant argues that the trial judge should not have allowed the purported admission to go to the jury in that form. The Crown argues that although the admission was awkwardly worded, there was no prejudice.
[61] I agree with the appellant that the trial judge should not have accepted the purported admission in the form in which it was filed. Section 655 of the Criminal Code allows for the accused or his counsel to “admit any fact alleged against him for the purpose of dispensing with proof thereof”. In this case, the purported admission regarding non-consent was not, as a matter of law, an admission of fact: R. v Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 56; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 64.
[62] It is clear that counsel at trial were seeking to narrow the issues for the jury. That is to be commended. But the manner in which they did so was problematic.
[63] The substance of what counsel sought to accomplish was that if the jury believed the complainant’s evidence beyond a reasonable doubt that the sexual contact occurred, the defence conceded that the circumstances she described proved non-consent beyond a reasonable doubt. This is clear from the comment of trial counsel at the time the admission was tendered that “consent is not an issue in this trial.” If anything, it was, in effect, a legal concession than rather than an admission of fact.
[64] There are at least two problems with describing what counsel sought to achieve as an admission. First, it is not a factual admission. The appellant’s position at trial was that no sexual contact occurred with the complainant – it was a denial that the incident happened. In these circumstances, how could he “admit” as a fact that if the sexual contact happened, it was not consensual? There is a significant risk that calling this an admission of fact would confuse the jury. Second, beyond potentially confusing the jury, there is a risk that styling this as a factual admission would undermine the defence position that the Crown had not proven beyond a reasonable doubt that the sexual contact even happened. Admitting as a fact that if the sexual contact happened, it was without the complainant’s consent, appears, on its face, inconsistent with denying that the sexual contact happened.
[65] There are other ways that this could have been explained to the jury without calling it an admission. The trial judge structured the instructions to the jury on the elements of sexual assault along the lines of the model instruction from Watt’s Manual of Criminal Jury Instructions: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pp. 598-601 (“Final 271: Sexual Assault”). The instructions proceeded step-by-step through the elements of the offence that the Crown was required to prove beyond a reasonable doubt in order for the jury to find the appellant guilty: (i) that the appellant intentionally applied force to the complainant; (ii) that she did not consent to the force that he intentionally applied; (iii) that the appellant knew she did not consent; and (iv) that the intentional application of force took place in circumstances of a sexual nature. As the jury proceeds through each step, at the end of each step, the jury is told that if they are not satisfied of the particular element beyond a reasonable doubt, they must find the defendant not guilty and that their deliberations would be over, but that if they are satisfied of that element beyond a reasonable doubt, they should proceed to the next element.
[66] The effect of this step-by-step progress in the instructions on the elements of sexual assault is that a jury will not get to the issue of non-consent unless it is first persuaded beyond a reasonable doubt that an intentional application of force occurred.
[67] Given this structure of the jury instruction, when the trial judge got to the non-consent element ((ii) listed above), after a brief explanation of this element, he could have told the jury:
- That if they were not satisfied beyond a reasonable doubt that the appellant had intentionally applied force to the complainant as she described, they would not reach the non-consent element.
- If they were considering this element, it meant they must have concluded that they believed the complainant’s evidence of the nature of the sexual contact.
- Given her description of the events, in particular that the appellant grabbed her by the neck and pushed her onto the bed, forcibly penetrated her, and that she was crying throughout, he would expect they would have little difficulty finding that the complainant did not consent.
Indeed, that is exactly how the trial judge dealt with the fourth element, whether the application of force occurred in circumstances of a sexual nature.
[68] This example is not the only manner in which a trial judge could deal with this issue. It is simply meant to provide an alternative to describing the position on non-consent in this case as an “admission”. Indeed, given the focus on the evidence and arguments in this trial on the sole issue of whether the acts complained of happened, some trial judges might choose to give instructions much more streamlined than the model instructions.
[69] Mr. Lockyer conceded that standing alone, the issues around this purported admission probably did not cause prejudice. The trial judge explained its effect to the jury in some detail. In particular, he explained that its purpose was to focus the jury’s attention on the central issue they had to decide – whether the sexual incident happened. He underlined that the defence was vigorously contesting whether that incident happened. Defence counsel also strongly made the same point in his closing submissions to the jury. Whether this issue will arise in the retrial is, of course, dependent on the evidence and the positions of the parties.
Conclusion
[70] I would allow the appeal, set aside the conviction, and order a new trial.
Released: December 6, 2022 “K.F” “J. Copeland J.A.” “I agree. K. Feldman J.A.” “I agree. B. Zarnett J.A.”
Notes
[^1]: I use the term “prior discreditable conduct” in these reasons to refer to the evidence at issue because that is the term most commonly used in the case law. However, on the facts of this case, some of the discreditable conduct occurred after the date of the alleged offence. No distinction was made at trial, or on appeal, between evidence of the appellant’s discreditable conduct that preceded the alleged offence or that post-dated it. The concern raised by the defence is that there was no limiting instruction given regarding evidence of the appellant’s discreditable conduct that was not the subject-matter of the charge before the court.
[^2]: Although no voir dire regarding admissibility was held when the evidence of the complainant’s prior statements was led, during the pre-charge conference, Crown counsel at trial argued that in addition to narrative, the prior statements were admissible to rebut an allegation of recent fabrication, and requested a jury instruction on that use of the prior statements. The trial judge rejected the latter argument, and found that the defence had not made an allegation of recent fabrication. The Crown does not challenge that ruling on appeal.
[^3]: I note that by its terms the purported admission only relates to the non-consent element, and not to the element of the appellant’s knowledge of non-consent.
