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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

Date: 20240708 Docket: COA-22-CR-0102 Roberts, Coroza and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

D.B. Appellant

Counsel: Matthew R. Gourlay, for the appellant Kristen Pollock, for the respondent

Heard: October 18, 2023

On appeal from the convictions entered on April 27, 2022 and the sentence imposed on September 13, 2022 by Justice Dale Parayeski of the Superior Court of Justice, sitting with a jury.

Coroza J.A.:

I. INTRODUCTION

[1] A jury convicted the appellant of three historical sexual offences against the complainant, his niece, when she was between the ages of six and ten. He was convicted of one count of sexual assault (s. 271), one of sexual interference (s. 151) and one of invitation to sexual touching (s. 152).

[2] The appellant raises three grounds of appeal on conviction. [1] The first is that evidence of the appellant’s initial reaction, or lack thereof, when allegations were first made against him was not probative of an issue at trial and the jury was not properly instructed regarding this evidence. The second is that the Crown’s cross-examination and closing submissions improperly invited the jury to infer that the appellant lied to secure an acquittal and the trial judge ought to have given a correcting instruction on this point. The third is that the trial judge erred by failing to caution the jury regarding evidence of extrinsic misconduct.

[3] For the reasons that follow, I conclude that the jury was not sufficiently instructed regarding the lack of probative value of the reaction evidence nor regarding the impermissible reasoning about the appellant’s motive to lie invited by the Crown in its closing submissions. Accordingly, I would allow the appeal, quash the convictions, and order a new trial. [2]

II. BACKGROUND FACTS

[4] The appellant is the complainant’s paternal uncle. Prior to the incidents, the complainant’s parents separated. The complainant lived primarily with her mother and siblings. On weekends, their father would drop the complainant and her siblings off at their paternal grandparents’ house until he finished work. The appellant would help take care of the complainant and her brothers when they were at the house. It was during these visits to her grandparents’ house that the complainant alleged the three incidents occurred.

[5] At trial, the complainant testified that although she believed the appellant touched her inappropriately on several occasions, she had a vivid recollection of three specific incidents dating back approximately 20 years from the time of trial. In each incident, the appellant touched the complainant’s vagina underneath her clothing. In the third incident, he also took the complainant’s hand and placed it on his crotch on top of his clothing. She removed her hand immediately. These three incidents formed the basis of the appellant’s convictions.

[6] The complainant disclosed the assaults to her mother, father, and brothers in 2017, when she was a young adult. On her request, her family did not contact the police. However, her mother, G.B., sent the appellant a Facebook message that same day saying they needed to talk and asking for his phone number. The appellant sent her his phone number. She confronted the appellant through a telephone call the next morning (the “2017 call”). Two years later, in 2019, a police officer contacted the complainant after receiving information about the sexual offences from a family member.

[7] The appellant testified at trial and denied all three incidents. He testified that he babysat the complainant and her brothers, but never touched the complainant for a sexual purpose and never invited sexual touching. As part of his narrative of the relevant time period, the appellant testified about having had a romantic affair with G.B. – his brother’s estranged wife and the complainant’s mother. However, they kept their affair a secret and did not behave inappropriately in front of G.B.’s children, including the complainant.

[8] G.B. also testified. While she described a friendly relationship with the appellant, she denied any romantic affair between them. It was the Crown’s ultimate position that the appellant was being dishonest about the affair, and that it never happened.

III. ISSUES ON APPEAL

[9] As noted above, the appellant raises three grounds of appeal. The appellant’s primary argument is that the Crown improperly asked the jury to draw an adverse inference against the appellant because he failed to do or say more after being confronted with these allegations in the 2017 call and that the trial judge should have instructed the jury to place no weight on this evidence. In the alternative, the appellant argues that even if the evidence had some probative value, the jury should have received an instruction that warned them against jumping to an incriminating conclusion without considering alternative explanations for the appellant’s behaviour.

[10] Second, the appellant argues that the trial judge was required to provide a limiting instruction regarding the Crown’s closing because it improperly suggested that the appellant had a motive to lie based on his status as the accused.

[11] Finally, the appellant argues that the trial judge was required to caution the jury regarding uses of bad character evidence related to the alleged affair and the appellant’s secrecy about it. Specifically, the appellant submits the trial judge needed to caution the jury against the line of reasoning that the appellant’s secrecy about the alleged affair supported the inference that he could also have assaulted his niece and kept it a secret.

IV. ANALYSIS

(1) The Trial Judge Should have Warned the Jury that the Reaction Evidence had No Probative Value

(a) The Reaction Evidence Led at Trial

[12] At trial, G.B. testified that she confronted the appellant with the allegations her daughter had just disclosed to her during the 2017 call. This evidence would have assisted the jury in understanding the timing and context of the complainant's disclosure to the police.

[13] G.B. testified that she was angry during the phone call and that she told the appellant what the complainant had told her about the allegations. The Crown objected to G.B. testifying about the appellant’s responses during the conversation and only asked her questions about what she told the appellant. The Crown also objected to defence counsel leading evidence during G.B.'s cross-examination that the appellant had denied the allegations.

[14] The appellant testified that he denied the allegations to G.B. and was “devastated” by them, stating: “My heart was pounding through my chest. I was thinking a million things in my head trying to figure out how this happened.” In cross-examination, the appellant testified that he was scared and really upset by the allegations. According to the appellant, G.B. told him not to contact her again and he took no further steps to contact G.B. or the complainant about the allegations.

[15] The Crown challenged the appellant at length about his reaction to being confronted with the allegations and his inaction in the aftermath. In particular, the Crown challenged the appellant on his decision not to contact G.B., the complainant, or his brother (the complainant’s father), to try to “get to the bottom” of the allegations. The cross-examination concluded with the following exchange:

Q. And I’m going to suggest to you, sir, that if you were innocent, if you had nothing to hide, you’d want to resolve this huge accusation that’s made against you?

A. Maybe.

Q. … I’m going to suggest to you that if you had nothing to hide and that if you didn’t do these terrible things, you’d want to address it with the family to get to the bottom of where this was coming from?

A. Maybe I should have.

[16] This theme of “getting to the bottom of it” featured prominently in the Crown’s closing address. The Crown argued at length that the appellant’s testimony with respect to his reaction and inaction following the initial confrontation with G.B. did not make sense and was therefore not credible. For example, the Crown said the following in her closing:

The most obvious example of the accused evidence not making sense is his testimony about how he behaved after [G.B.] confronted him about touching her daughter.

So as you heard [G.B.’s] confrontation of [the appellant] back in 2017 was pretty intense. So intense that on [the appellant’s] evidence in his own words, it left him devastated thinking a million things. Heart pounding through his chest, and importantly he was scared.

He was accused of sexually assaulting a young child, his own niece, his brother’s daughter, but after the accusation was made, he just never did or said anything about it.

Doesn’t common sense tell you that having been accused of sexually corrupting his young niece, if he were innocent, he would want to sit down and talk to his brother, his niece, or [G.B.] to figure out where this was coming from? To clear this up, to clear his name if what she was saying was not true. Or at least, if he were innocent, he might want to talk it through to put everyone else’s mind at ease given how serious these accusations were. But he didn’t seek to do any of those things.

[17] The trial judge’s charge repeated the Crown’s position and reiterated her contention that the appellant’s behaviour after the initial confrontation was problematic:

If he were innocent it does not make sense that he would do absolutely nothing after being accused of horrific criminal allegations involving the sexual corruption of his own niece. Rather his action is in line with someone who is ashamed of what they had done.…

[18] Defence counsel did not object to the Crown’s cross examination of the appellant, the Crown’s closing submissions, or the admission of the appellant’s evidence on these points, and he did not request a limiting or corrective instruction.

(b) Applicable Legal Principles

[19] Evidence of the accused’s demeanour upon being confronted with an allegation is notoriously unreliable: see R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.). In Levert, the complainant’s foster mother confronted the appellant with an accusation that he had touched the complainant inappropriately. The appellant denied the allegations, but according to the complainant’s foster mother, was “very, very, very calm” and “not on the defensive at all”. The appellant testified that he was generally a calm person and at the time the allegation was made he felt confident that the foster mother would find nothing improper. On appeal, Rosenberg J.A. expressed grave concerns about the admissibility of this evidence. [3] Rosenberg J.A. noted that this type of evidence “can be highly suspect and should be admitted at a criminal trial with caution”. This is because “[p]erceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal”: at paras. 25-27. Such evidence is predicated on an often unreliable assumption about how a “normal” person would react to a highly stressful and unusual situation, and because it assumes that outward appearance accurately reflects an individual’s state of mind: R. v. Trotta (2004), 190 C.C.C. (3d) 199 (Ont. C.A.), at paras. 40-41, rev’d on other grounds in 2007 SCC 49, [2007] 3 S.C.R. 453; see also R. v. Wall (2005), 77 O.R. (3d) 784 (C.A.), at paras. 48-50; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 75-76; R. v. Morales (2006), 81 O.R. (3d) 161 (C.A.), at paras. 18-19; R. v. Perlett (2006), 82 O.R. (3d) 89 (C.A.), at para. 85, leave to appeal refused, [2007] S.C.C.A. No. 96.

[20] The caution called for in Levert is not limited to evidence about the accused’s demeanour in the sense of his appearance or presentation. It also applies to evidence of an accused’s actions or failure to do or say certain things when confronted with an allegation. In R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, following R. v. J.S.W., 2013 ONCA 593, 301 C.C.C. (3d) 252, this Court extended the principles from Levert to an accused’s failure to deny an allegation because, like demeanour evidence, the relevance of the accused’s failure to deny rests on an unreliable assumption about what a “normal” reaction looks like: at paras. 38-40.

[21] This is not to say that the Crown is absolutely prohibited from leading evidence of an accused’s demeanour or reaction when confronted with an allegation, or with news that a victim has disappeared or died. Indeed, there are cases that have admitted such evidence.

[22] For example, in R. v. Staples, 2022 ONCA 266, leave to appeal refused, [2002] S.C.C.A. No. 182, the appellant was convicted of murdering his father and sister. Several witnesses, including the appellant’s ex-wife, testified that the appellant had been seen crying in the days after his father and sister went missing. On appeal, this court held that this demeanour evidence was properly admissible and had probative value. The key witness concerning the appellant’s crying was his ex-wife who was intimately familiar with him and “had a strong basis for believing that his demeanour was unusual”: at para. 39. In the context of the appellant’s stated belief at the time that his sister and brother had just gone away for a few days, the appellant’s demeanour was probative of guilt: at paras. 39-42. Similarly, in Trotta, the appellant was convicted of murdering his eight-month-old son. One of the grounds of appeal concerned the admissibility of testimony from the emergency room physician treating the son, who said that the appellant appeared calm and uninterested. Notwithstanding the caution from Levert, Doherty J.A. writing for this court rejected an argument that the evidence had no probative value given the treating physician’s extensive experience observing parents who had brought their young children to the hospital: at para. 42.

[23] Furthermore, in certain circumstances an accused can be taken as having implicitly adopted an accusation as true based on their conduct or demeanour, or even based on their silence in circumstances that give rise to a reasonable expectation of reply: R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-51, leave to appeal refused, [2014] S.C.C.A. No. 500. For example, in R. v. Gordon, 2022 ONCA 799, leave to appeal refused, [2023] S.C.C.A. No. 136, the appellant was convicted of murder. A friend of the victim and the appellant asked the appellant over the phone why he had not attended the victim’s funeral, and told the appellant that she had heard he was the one who killed the victim. The appellant responded: “shut up, shut up, shut up” and “this was not a conversation to be had on the phone”: at para. 13. The trial judge cautioned the jury about the use of this evidence. On appeal, this court found no error in the trial judge’s decision to leave this evidence with the jury because it was open to the jury to find that the appellant’s response to the accusations amounted to an adoption of the accusations as true: at para. 51.

[24] In sum, like evidence about the accused’s demeanour, evidence of an accused’s actions or inactions after being confronted with an allegation or difficult news may be relevant to a live issue in the case and more probative than prejudicial. However, it must be approached with caution. Ultimately, it will be up to the trial judge to remain vigilant for this type of evidence and to exercise their gatekeeping role. Where evidence is not relevant to a live material issue, it should be excluded or the jury should at least be instructed that the evidence has no probative value. Even where the evidence is relevant, trial judges still retain the general discretion to exclude relevant evidence when its potential prejudice exceeds its probative force: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 109-10, per Martin J. (dissenting, but not on these points).

(c) The Appellant’s Reaction in this Case was Not Probative

[25] I now turn to the use of the appellant’s reaction or failure to say or do anything after the 2017 call. The respondent disputes that the trial Crown intended to lead reaction evidence to support the impermissible line of reasoning that the appellant’s behaviour did not accord with that of an innocent person. Rather, the respondent submits the appellant was cross-examined for the purpose of contradicting his testimony that he was “devastated” and that he was “thinking a million things in [his] head trying to figure out how this happened”. As I understand the argument, the appellant’s credibility was a relevant and material issue and the reaction evidence was probative of that issue.

[26] I do not find this submission persuasive. There was nothing internally contradictory about the appellant’s evidence concerning his reaction to the allegations and his failure to contact the complainant or G.B. after the 2017 call. The respondent’s submission rests on a flawed presumption that an innocent person in the appellant’s shoes was required to do something after he was confronted with the allegation. The appellant’s evidence was clear. He testified that he was trying to process why the complainant was making the allegation. Fairly read, the appellant’s position was that he was in a state of turmoil. Respectfully, his subsequent inaction did not reveal an internal contradiction in that testimony.

[27] Nor do I accept that the purpose of the Crown’s cross-examination was to show that the appellant’s evidence of his internal turmoil was contradictory. The following excerpts of the Crown’s cross-examination are particularly relevant:

Q. I’m going to suggest to you, sir, that if you were innocent, if you had nothing to hide, you’d want to resolve this huge accusation that’s made against you?

A. Maybe.

Q. I’m going to suggest to you that if you had nothing to hide and that if you didn’t do these terrible things, you’d want to address it with the family to get to the bottom of where this was coming from?

A. Maybe I should have. [Emphasis added.]

[28] Contrary to the respondent’s submission, the Crown did not use this evidence for the purpose of contradicting the appellant’s own evidence. Instead, the Crown argued that the appellant was guilty because, if he had been innocent, he would have inquired with the complainant or her parents about the accusations. This inaction or failure to address the allegation with the complainant or her family was a central plank of the Crown's cross-examination of the appellant and its closing argument. Indeed, the Crown forcefully tied the evidence of the appellant’s reaction and inaction to the presumption of innocence in her closing address:

If he were innocent of what his niece says that he had done, and he was confronted about that, does it make sense that he would just ignore that confrontation? Doesn’t common sense tell you that having been accused of sexually corrupting his young niece, if he were innocent, he would want to sit down and talk to his brother, his niece or [G.B.] to figure out where this was coming from? To clear this up, to clear his name if what she was saying was not true. Or at least, if he were innocent, he might want to talk it through to put everyone else’s mind at ease given how serious these accusations were. But he didn’t seek to do any of those things. [Emphasis added.]

[29] In my view, the appellant’s failure to do or say more after being confronted with the allegation had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to “get to the bottom” of the allegations. The specific evidence in this case supports alternative explanations consistent with innocence for why the appellant did not do more to “get to the bottom” of the allegations. In particular:

• The uncontested evidence that at the time of the 2017 call the appellant and his brother (the complainant’s father) had had a falling out and the appellant was not speaking to his brother.
• The uncontested evidence that G.B. during the 2017 call asked the appellant not to reach out to her again.
• The uncontested evidence that during the 2017 call the appellant asked G.B. if he could see the complainant, that G.B. responded that she would ask the complainant, that G.B. never told him that he could, and that the appellant never spoke to the mother about this again after that.

[30] The cross-examination of the Crown and her closing submissions served only to invite an inference predicated on unreliable assumptions about what an innocent person would do in the appellant’s circumstances. Aside from the evidence in this particular case, there are also many reasons why an innocent person in general may not have followed up with their family members in the face of an accusation of this nature, and why it would be hazardous for a jury member to infer guilt from this behaviour. For example, a person accused of sexually assaulting a family member may prefer not to talk to the alleged victim or other family members about the allegation in the hopes that the allegations would blow over – not because the person is guilty, but because an innocent person has an interest in avoiding arrest and a trial on false charges. Moreover and relatedly, the accused may also have sought legal advice and been advised against speaking with anyone.

[31] In sum, the appellant’s inaction following the accusation in the 2017 call was equally consistent with innocence as with guilt. This evidence had no probative value insofar as it was introduced to show that the appellant was guilty because an innocent person would have done more in response to these allegations. There was no basis to believe that the appellant’s testimony was contradictory or that his failure to do something or say anything after the 2017 call was probative of his credibility or guilt.

[32] In this appeal, the appellant does not advance an argument that the evidence ought to have been excluded because he acknowledges that the evidence was put before the jury without objection from defence counsel. However, he argues that the jury should have been instructed that it had no probative value.

[33] I agree. This court in Chafe affirmed the importance of properly instructing the jury on after-the-fact reaction evidence. In Chafe, while Benotto J.A. made no comments on whether the appellant’s response to an allegation should have been admitted in the first place, she observed that at the very least, the trial judge was required to instruct the jury that they should place no weight on the appellant’s response to an undetailed allegation. This would include an instruction that there is no “normal” way for a person to react when faced with an accusation of wrongdoing: at para. 45. A similar instruction should have been given in this case.

[34] A caution is extremely important when this type of evidence is introduced in a criminal trial. That is because jurors cannot be expected to have had experience in being accused, in this case of a historical sexual crime, and it is difficult to predict how a “normal”, innocent person would react in those circumstances: Trotta, at para. 40. This is perhaps particularly so in the interfamilial context, given all the possible specificities of the family’s history, dynamics, and current circumstances.

[35] In fairness to the trial judge, defence counsel did not raise any concerns about this evidence at any point during the trial. That can be a consideration in the assessment of the prejudicial impact of the evidence. However, a “legal error remains a legal error irrespective of trial counsel’s position”: R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 70. Upon reviewing the record, I have no reason to believe that defence counsel’s failure to object was a tactical decision: Calnen, at paras. 40-41. Therefore, the failure of defence counsel to object to the jury charge is not determinative: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 67-69.

[36] Accordingly, notwithstanding the failure of defence counsel to object, the circumstances of this case were such that the trial judge should have instructed the jury that the reaction evidence had no probative value and his failure to do so is an error of law: Abdullahi, at para 49.

(2) The Trial Judge Should have Warned the Jury not to Presume that the Appellant had a Motive to Lie because he was Accused

(a) The Crown’s Closing

[37] The Crown’s closing is replete with references to the idea that the appellant’s testimony was concocted. The Crown also said the following in her address to the jury:

[Y]ou can consider [the appellant’s] motive to be dishonest in his testimony when you’re assessing his credibility. Obviously, in order to walk from these charges [the appellant] has to claim that he didn’t do the things that [the complainant] alleges. There’s no doubt that he has a strong reason for asserting that. [Emphasis added.]

[38] At another point in the closing the Crown “urge[d]” the jury “to reject [the appellant’s] testimony on these issues as efforts to get out from under the credible and truthful allegations that [the complainant] has made before you.”

[39] At the pre-charge conference, defence counsel raised an objection about these aspects of the Crown’s closing and asked the trial judge to instruct the jury that it must not presume that an accused will lie to secure an acquittal, relying on R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397. The trial judge noted the objection and advised he would read the Laboucan decision that evening. Regrettably, the trial judge did not rule on the issue, nor did he include the instruction that defence counsel was seeking in the charge.

(b) Applicable Legal Principles

[40] In Laboucan, the Supreme Court of Canada held that while there is no absolute prohibition against considering an accused’s motive to lie in assessing their credibility, this type of submission is fraught with risk because it can potentially undermine the presumption of innocence. Accordingly, where the issue is raised at trial, juries should be instructed not to presume that an accused will lie to avoid conviction. Such an instruction is consistent with one of jury instructions’ central goals: to ensure jurors do not engage in assumptions or forms of reasoning that do not respect fundamental principles such as the presumption of innocence: see R. v. Hayles-Wilson, 2022 ONCA 790, 165 O.R. (3d) 97, at para. 31.

(c) A Correcting Instruction on the Implied Motive to Lie was Required

[41] The appellant argues that the trial judge’s failure to provide a limiting instruction on the Crown’s argument would have misled the jury, causing them to place undue weight on the Crown’s argument, and ultimately undermining the presumption of innocence.

[42] The respondent argues that no special instruction was required in this case because the Crown was simply encouraging the jury to conclude that the appellant was not credible based on inconsistencies and illogicalities in his evidence.

[43] I reject the respondent’s argument that the Crown’s closing did not engage in the problematic line of reasoning identified by the Supreme Court in Laboucan. The closing address, when read as a whole, expressly urged the jury to find the appellant’s testimony was concocted by the appellant “in order to walk away from these charges”. This was improper and offended the presumption of innocence. The trial judge should have corrected the Crown’s submissions: see Hayles-Wilson, at para. 34.

(3) The Impact of the Errors

[44] On a conviction appeal, this court can allow an appeal under s. 686(1)(a) if there is an error of law, unreasonable verdict, or miscarriage of justice. A challenge to a jury charge is analyzed as an error of law: Abdullahi, at para. 30. I acknowledge that a jury charge need not be perfect. However, taking a functional approach to this charge, it did not equip the jury with the tools required to deal with this prejudicial evidence. When the circumstances of a case require a particular instruction, it is an error of law to omit it: Abdullahi, at para. 49.

[45] As discussed above, the evidence about the appellant's failure to do or say more after he was confronted with the allegations had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to "get to the bottom” of the allegations. The jury therefore should have been told not to rely on this evidence for that purpose, given the multiple innocent alternative explanations for the appellant's conduct. The failure to address the reaction evidence in the charge was extremely prejudicial. And the failure to address the Crown’s submission regarding the appellant’s motive to lie undermined the presumption of innocence and exacerbated the prejudice. The jury charge left the jury unequipped to fairly decide the case and a new trial is required: see Hayles-Wilson, at para. 35. [4] Given my findings on these grounds of appeal, it is not necessary to deal with the third issue.

V. CONCLUSION

[46] I would allow the appeal, quash the convictions, set aside the sentence, and order a new trial. Given my proposed disposition of the conviction appeal, I do not reach the sentence appeal.

Released: July 8, 2024 “L.B.R.”

“S. Coroza J.A.”

“I agree. Roberts J.A.”

“I agree. P.J. Monahan J.A.”

[1] The appellant’s supplementary notice of appeal refers to an appeal from sentence. However, the court did not receive any submissions relating to the sentence appeal.

[2] Given my conclusions on these two grounds of appeal it is unnecessary to deal with the appellant’s third ground of appeal.

[3] Ultimately, Rosenberg J.A. noted that while the trial judge may well have exercised his discretion and excluded this evidence, a new trial was not required because this evidence only received brief attention, and because defence counsel in closing argued it indicated innocence rather than guilt.

[4] The respondent, quite correctly in my view, did not rely on the proviso in this case.