COURT OF APPEAL FOR ONTARIO
CITATION: R. v. A.V., 2025 ONCA 57[^1]
DATE: 20250123
DOCKET: COA-23-CR-1177 & COA-23-CR-0548
Fairburn A.C.J.O., Dawe J.A. and Code J. (ad hoc)
DOCKET: COA-23-CR-1177
BETWEEN
His Majesty the King
Respondent
and
A.V.
Appellant
DOCKET: COA-23-CR-0548
AND BETWEEN
His Majesty the King
Appellant
and
A.V.
Respondent
Richard Litkowski, for the appellant (COA-23-CR-1177) and the respondent (COA-23-CR-0548)
Katie Beaudoin, for the appellant (COA-23-CR-0548)
Lorna Bolton, for the respondent (COA-23-CR-1177)
Heard: January 6, 2025
On appeal from the conviction entered by Justice Michael D. McArthur of the Superior Court of Justice, sitting with a jury, on December 6, 2022, and the sentence imposed on April 25, 2023, with reasons reported at 2023 ONSC 2477.
REASONS FOR DECISION
A. Overview
[1] The appellant on the conviction appeal was convicted of six counts of sexual assault involving six separate complainants, all of whom worked at an adult massage parlour. The appellant was the owner and operator of this business.
[2] The offences occurred over approximately eight years, between 2003 and 2010. They involved a similar modus operandi, which included the appellant asking the complainants for a massage. While the massages started consensually, each complainant testified about how it evolved into non-consensual sexual activity which ranged from attempted vaginal penetration to, in one case, anal penetration.
[3] The Crown brought a cross-count similar act evidence application in this trial, which was dismissed.
[4] The jury returned verdicts of guilty on the six counts of sexual assault, following which the appellant was sentenced to a total of five years and eight months imprisonment.
[5] The appeal from conviction rests on an objection to the jury charge. The charge is said to fail to adhere to the similar act evidence ruling in the sense that the jury was not told about the dangers of propensity reasoning and to avoid applying the evidence across the counts.
[6] The Crown also appeals from sentence.
[7] At the conclusion of the hearing, we granted the conviction appeal, set aside the convictions, and ordered a new trial with reasons to follow. These are our reasons.
B. The FRAILTIES IN THE CHARGE
[8] The appellant argues that there are two fundamental errors in the jury charge. They are said to be errors of omission and arise largely from the fact that the trial judge dismissed the Crown’s application to have the evidence of all complainants apply across the counts, in what we refer to as the similar act evidence ruling. The appellant contends that, in light of that ruling, the jury should have been specifically told not to apply the evidence across counts, and to avoid engaging in propensity reasoning. The trial judge’s silence on these points is said to constitute reversible error because, while they would have been contingent instructions, they were anything but optional in the circumstances of this case: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 49.
[9] In our view, the appellant is right on this point. The instructions were required.
[10] In the context of a multi-count indictment where similar act evidence has not been admitted, such as this case, and where there exists a risk that evidence on one count could be used by the jury as proof that the accused committed the offences in other counts, the trial judge should instruct the jury not to engage in cross-count reasoning. This instruction must bring home to the jury that each allegation is a separate one that is demanding of separate consideration and a separate verdict, that the verdicts need not all be the same, and that their decisions on each count should be based on the evidence relating only to that count: see e.g., David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 ed. (Toronto: Thomson Reuters, 2023), at pp. 464-465 (Final 44-A).
[11] In addition, and regardless of whether similar act evidence has been admitted to permit the cross-count application of evidence, if there remains a risk that a jury could engage in prohibited propensity reasoning, a limiting instruction is required. That instruction involves telling the jury that they must not rely on the cross-count evidence as proof that the accused is the type of person who would have committed the offence(s): R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at para. 42; R. v. M.R.S., 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 68.
[12] Crown counsel argues that, while the instructions given were not textbook perfect, they were sufficient to warn the jury against propensity reasoning and the improper consideration of evidence across counts.
[13] First, the Crown leans on the following instruction as a less than perfect, but nonetheless adequate, instruction warning the jury against propensity reasoning. The trial judge told the jury that:
[Y]ou must not make any adverse findings or negative considerations of [A.V.] based on him as the owner and operator of this business [an adult massage parlour]. You must not at any point in your deliberations or considerations [conclude] that [A.V.] is the type of person with the character or disposition to commit the sexual acts for which he is alleged to have committed. Like other instructions I have provided, character and disposition have no relevance to your deliberations.
[14] There are two difficulties with this instruction and why it falls short of an adequate propensity instruction. First, the reference to avoiding propensity reasoning was directly linked to the fact of the appellant’s employment as an owner and operator of an adult massage parlour. However, what needed to be brought home to the jury was that they could not use the evidence in one count to reason that the appellant is the type of person, with a general disposition or character, that is such that he was likely to have committed the offences in the other counts. In our view, the above quoted instruction did not achieve that purpose.
[15] Second, Crown counsel points to the fact that the only real issue for the jury to decide was whether the complainants in each count consented to the sexual activity in issue. Given that consent was the only live issue for the jury’s consideration, Crown counsel argues that the risks typically associated with cross-count reasoning were diminished. This is said to be particularly true in light of how the trial judge framed his instructions related to the issue of consent. By way of example, he explained to the jury that there was “no consent unless the named complainant has agreed in her mind to sexual activity at the time it was occurring” (emphasis added). The reference to the “named complainant” — framed in the singular — is said to have made it clear to the jury that they were only to consider the evidence of that complainant when deciding the issue of consent.
[16] Respectfully, the difficulty with this position is that without any instruction on the prohibited use of evidence across counts, the jury may well have reasoned that one complainant’s evidence regarding the lack of consent could lend credibility and reliability to another complainant’s evidence regarding the lack of consent.
[17] Crown counsel also points to the fact that neither counsel invited the jury to consider the evidence across counts. That may well be true, but nor did they direct the jury to follow the correct legal approach. At its highest, we see the absence of an invitation to the jury to do what they were not permitted to do as a neutral factor at best.
[18] Finally, the Crown points to the fact that there was no objection to the charge from experienced defence counsel. While that is correct, this was a legal error, and a significant one at that. It was for the trial judge to get it right and the failure to object in these circumstances is of no assistance to the Crown.
C. Applying the Curative Proviso
[19] If we find that the jury charge contains reversible error, Crown counsel asks us to apply the curative proviso pursuant to s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, and dismiss the appeal on the ground that the error did not result in any substantial wrong or miscarriage of justice.
[20] When invoking the proviso, the onus falls squarely on the Crown to rebut the presumption of prejudice arising from the error and to show that the error of law did not in fact cause prejudice to the accused: R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, at para. 58; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 23. In general, s. 686(1)(b)(iii) can be invoked to maintain a verdict where there exists no reasonable possibility that it would have been any different had the error not been made: Khan, at para. 28, citing R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 617.
[21] In advancing the argument in favour of applying the proviso here, Crown counsel does not argue that the verdict would have been the same had the missing instructions involving propensity reasoning and the cross-count application of evidence been given. Rather, Crown counsel advances the argument that the trial judge erred in his similar act evidence ruling, erroneously excluding the cross-count application of evidence. Crown counsel advances numerous reasons for why the ruling reflects an erroneous approach, including that it is rooted in illogical and speculative reasoning and misapprehensions of both the law and evidence.
[22] In our view, while there is much to be said for the Crown’s argument that the similar act ruling reflects error, we see no need to explore those errors.
[23] Even if the evidence had been admissible across counts, we cannot say that there is no reasonable possibility that the verdict(s) would have been different. Had the evidence been admissible, the trial judge would have had to have instructed the jury in accordance with its admission. That instruction would have been detailed and provided guidance on how to approach the evidence, specifically with a view to considering similarities and dissimilarities as an advance determination as to whether the evidence should apply across counts. It would have cautioned the jury to avoid thinking that simply because one complainant may be telling the truth, that the others were also necessarily telling the truth. And it would have cautioned them against propensity reasoning.
[24] We would also note that there was a suggestion of collusion between some of the complainants in this case, a suggestion that may well have attracted another instruction to the jury on how to resolve that question as it pertained to the reliability of the evidence.
[25] Clearly, none of these instructions were given to the jury and for obvious reasons: the cross-count application of evidence was ruled inadmissible. In these circumstances, while the Crown may well be right that the jury should have been able to at least consider the cross-count application of evidence, we cannot say with any confidence what a trier of fact would have done with that evidence had a proper instruction been given. This is particularly true given that there was a complete absence of any instruction to the jury to avoid propensity reasoning.
D. Conclusion
[26] It is for these reasons that we allowed the conviction appeal, set aside the convictions and ordered a new trial. We would simply note that, to the extent necessary, if there is a new application by the trial Crown for the admission of similar act evidence across counts, the trial judge should not feel bound by the earlier ruling.
[27] In the circumstances, the sentence appeal was not reached.
“Fairburn A.C.J.O.”
“J. Dawe J.A.”
“M.A. Code J. (ad hoc)”
[^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.