COURT OF APPEAL FOR ONTARIO DATE: 20241220 DOCKET: COA-22-CR-0343

MacPherson, Gillese and Roberts JJ.A.

BETWEEN

His Majesty the King Respondent

and

C.D. Appellant

Counsel: Scott C. Hutchison and Brandon Chung, for the appellant Kevin Rawluk, for the respondent

Heard: December 17, 2024

On appeal from the conviction entered by Justice Pamela L. Hebner of the Superior Court of Justice, sitting with a jury, on September 22, 2022, and the sentence imposed on October 28, 2022.

REASONS FOR DECISION

Overview

[1] The appellant was the complainant’s golf instructor and her boss when she worked in the golf club’s kitchen and pro shop. He was convicted by a jury of one count of sexual interference, two counts of sexual exploitation, and one count of sexual assault. The sexual assault conviction was stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. He was sentenced to 42 months’ imprisonment, with multiple ancillary orders, including the order under appeal requiring the appellant to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) for life.[^1]

[2] In the course of his oral submissions, appellant’s counsel advised that the sentence appeal was abandoned.

[3] At the end of the parties’ submissions, we dismissed the appeal with reasons to follow. These are our reasons.

Factual background

[4] The Crown called two witnesses at trial: the complainant and the complainant’s boyfriend at the time of some of the incidents at issue. The appellant also testified in his defence. The evidence was completed in one day.

[5] The incidents in question occurred when the complainant was between 12 and 17 years of age. These incidents consisted of the appellant patting her on the bottom and kissing her neck and progressed to digitally penetrating the complainant when they were in a golf cart and putting his arms around her from behind and pressing his body against hers on the golf course during golf lessons. Although not particulars of the charges against the appellant, the complainant testified that the appellant would talk to her frequently about oral sex and make pointed comments about her legs, and that once when she was in a shower, the appellant pulled back the curtain and the complainant closed the curtain and told him to leave, which he did (“the shower incident”). The appellant denied any improper behaviour towards the complainant. He admitted to kissing her on the forehead and hugging her, and walking into the room on one occasion when the complainant was in the shower with the curtain shut.

[6] As the trial judge noted in his charge to the jury, the complainant said she left her employment “due to years of abuse, touching, comments, and the fact that everyone else received a raise in pay except for her”. The complainant’s former boyfriend testified that he saw the appellant put his arms around the complainant from behind on the golf course and that the complainant told him about the shower incident. Although she told her boyfriend about the shower incident shortly after it occurred, the complainant did not report the incidents to police until years later in 2020 because the appellant told her that no one would believe her, and she was ashamed. After making the complaint to the police, the complainant commenced a civil action for damages against the appellant based on the same incidents.

Issues and Analysis

[7] The appellant submits that the trial judge made three reversible errors, requiring a new trial:

1. The trial judge erred in admitting the prior discreditable conduct of the shower incident. If admissible, the trial judge erred in failing to caution the jury against prohibited propensity reasoning and instruct the specific use to which the evidence could be put.
2. The trial judge failed to caution the jury about the dangers of accepting the complainant’s prior consistent statement about the shower incident to her former boyfriend as corroborating the complainant’s account.
3. The trial judge failed to instruct the jury against cross-count reasoning.

[8] We are not persuaded that the trial judge made any error.

[9] First, the trial judge did not err by admitting evidence of the shower incident nor did the lack of a jury instruction related to this evidence render the trial unfair.

[10] The evidence of the shower incident was relevant to the Crown’s case as evidence of the appellant’s motive, namely, the appellant’s inappropriate sexual interest in the complainant. As this court reaffirmed in R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 88: “Where bad character evidence is relevant to motive the trial judge is not required to provide a limiting instruction to the jury warning them against the improper use of this evidence.”

[11] The evidence of the shower incident was also properly admissible to rebut the defence theory of the complainant’s fabrication, motive of her civil lawsuit, and delayed disclosure of the allegations, as well as part of the narrative relevant to the reason for the complainant leaving her job with the golf club and her changed demeanour: R. v. Brown, 2022 ONCA 417, at para. 14; R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at paras. 93-95, per van Rensburg J.A., concurring; R. v. Anderson, 2018 ONCA 1002, 371 C.C.C. (3d) 63, at paras. 28-30; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 31-34, leave to appeal refused, [2017] S.C.C.A No. 139.

[12] Importantly, the appellant’s trial counsel did not object to the introduction of this evidence, cross-examined the complainant and her former boyfriend on elements of it, and included it in closing submissions in support of the defence theory of fabrication, motive and delayed disclosure. Defence counsel did not ask the trial judge for any instruction concerning the shower incident.

[13] Second, it was unnecessary in this case for the trial judge to provide a prior consistent statement instruction regarding the complainant’s statement about the shower incident to her former boyfriend. The Crown advised that it was not leading this statement for the truth of its contents. Defence counsel did not ask for any instruction on this issue. Further, the defence effectively treated the complainant’s disclosure of the shower incident to her former boyfriend as a prior inconsistent statement in his closing submissions to the jury to challenge the complainant’s credibility, arguing: “Why wouldn’t you complain to the boyfriend if you complained about the shower, about the other things.”

[14] We see defence counsel’s lack of objection and failure to ask for a limiting instruction as an intentional tactical decision. The shower incident was not something that took defence counsel by surprise. It had formed the basis for the voyeurism count that was withdrawn at the beginning of the trial.[^2] Defence counsel made substantial use of this evidence to challenge the complainant’s credibility, and her financial motive for and the timing of her disclosure of the allegations. An instruction regarding the shower incident would only have served to emphasize it, which would not have been to the appellant’s advantage in this short trial. It was clear from the trial judge’s charge that the shower incident did not form part of the factual underpinnings of the charges.

[15] In the circumstances of this case, the lack of objection and request for a limiting instruction may be taken as a legitimate tactical decision that defence counsel fairly took in the appellant’s interest: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 18, 38-41, 67; R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 69; R. v. B.B., 2024 ONCA 766, at paras. 38, 39.

[16] Finally, the trial judge did not fail to caution the jury against cross-count reasoning. The trial judge’s instruction to the jury to consider each charge separately and render separate verdicts on each one was sufficient in the circumstances of this short trial where there was only one complainant and much of the evidence was relevant to all counts. There was no risk of improper propensity reasoning.

Disposition

[17] For these reasons, we dismiss the appeal from conviction. The sentence appeal is dismissed as abandoned.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“L.B. Roberts J.A.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46. [^2]: The Crown withdrew the voyeurism charge at the outset of the trial as the offence did not exist at the time the shower incident was alleged to have occurred.