R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 SCR 697

R. v. B. (F.F.), [1993] 1 S.C.R. 697

F.F.B. Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. B. (F.F.)

File No.: 22811.

1992: October 5; 1993: February 25.

Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier and Iacobucci JJ.

on appeal from the court of appeal for nova scotia

Evidence ‑‑ Admissibility ‑‑ Similar fact evidence ‑‑ Highly prejudicial evidence tending to show bad character likely to commit offence ‑‑ Sexual and physical abuse of minor ‑‑ Evidence by brothers of violence in home ‑‑ Whether evidence inadmissible as being oath‑helping evidence ‑‑ Whether evidence inadmissible because irrelevant to any issue other than the appellant's character or because prejudicial value outweighed probative value ‑‑ If admissible, whether jury should have been given special instructions about its permissible use.

Criminal law ‑‑ Curative provision allowing for verdict to stand notwithstanding error of law ‑‑ Charge to jury not indicating use to which evidence could be put ‑‑ Evidence highly prejudicial and tending to show bad character likely to commit offence ‑‑ Whether Criminal Code's curative provision should apply ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).

Appellant was alleged to have sexually assaulted his niece from when she was six to eight years old through to age sixteen. The complainant had been in his care as a child during the fifties and sixties and only left her parents' household in 1964 after being discovered in the act of intercourse with her. The alleged assaults were reported to the police in 1990 and appellant was charged with rape, assault and procuring an abortion.

During the course of the trial, the judge decided on a voir dire not to admit the evidence of the complainant's sister that she too had been sexually assaulted by the appellant, on the ground that it fell within the similar fact evidence rule and its prejudicial effect was not outweighed by its probative value. However, testimony of the complainant's brothers and sisters was admitted with respect to the violent control that the appellant exerted within the household. Appellant was convicted of rape and assault and was unsuccessful in his appeal to the Nova Scotia Court of Appeal. He had sought to have declared inadmissible those parts of her brothers' testimony relating to assaults by the appellant on the complainant's siblings. Given a dissenting opinion, an appeal as of right arose on this point.

At issue here was: (1) whether the evidence of the brothers was inadmissible on the ground that it was oath‑helping evidence; (2) whether this evidence was inadmissible because it was irrelevant to any issue other than the appellant's character or that its prejudicial value outweighed its probative value; (3) if the evidence was admissible, whether the trial judge should have given the jury special instructions about the use they could make of this testimony; and finally, (4) whether the appeal should be dismissed under s. 686(1)(b)(iii) of the Criminal Code on the ground that no substantial wrong or miscarriage of justice occurred.

Held (L'Heureux‑Dubé and Gonthier JJ. dissenting): The appeal should be allowed.

Per Sopinka and Iacobucci JJ.: The question of whether or not the evidence was inadmissible on the ground of being oath‑helping evidence was not discussed by the Court of Appeal and therefore was not a "question of law on which a judge of the court of appeal dissent[ed]." Consequently, the appellant could not raise this as an issue before this Court.

The rule against oath‑helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness' credibility before that witness' credibility is attacked. This type of evidence tends to prove the truthfulness of the witness, rather than the truth of the witness' statements. The testimony at issue made no reference to the truthfulness or good character of the complainant, or of themselves. Their evidence was rather corroborative of an issue in the trial that was raised in the complainant's testimony ‑‑ the system of violent domination that the appellant used to control the members of the household. While the impugned testimony shored up the complainant's credibility by implication, it was not called solely or even primarily for that purpose. It was not, therefore, oath‑helping evidence.

Evidence which tends to show bad character or a criminal disposition on the part of the accused is admissible if (1) relevant to some other issue beyond disposition or character, and (2) the probative value outweighs the prejudicial effect. The impugned evidence tended to show that the appellant is a person of bad character, with a propensity for violence. It was, however, not tendered solely to show that the appellant was the sort of person likely to commit the offences charged. Rather, it was to rebut the defence of innocent association and demonstrate the system of violent control that the appellant exercised over the family. This would explain why the abuse was allowed to occur and why the complainant was too frightened to press charges until much later. It also countered the suggestion that the complainant's mother was responsible for her physical injuries.

Where the evidence sought to be adduced by the prosecution concerns a morally repugnant act committed by the accused, the potential prejudice is great and the probative value must be high to permit its reception. The evidence was clearly probative and its probative value outweighed any prejudicial effect.

Trial judges must properly instruct juries as to the use that they can make of evidence which is highly prejudicial to an accused in relation to the accused's character. Here, the trial judge did not charge the jury with respect to the use they could make of this testimony. The judge was required to explain clearly in the instructions to the jurors that they must not infer from the evidence that tended to show the appellant's bad character that the appellant was guilty because he is the sort of person who is likely to commit the offences in question. The prejudicial effect of the impugned testimony was high enough that lack of proper instruction may have resulted in unfair guilty verdicts. The trial judge's caution to the jury that they could not use a conviction on one count before them as evidence of propensity to commit the other counts and that they could only make limited use of the evidence of the appellant's prior convictions did not cure the charge of its faults. Finally, no connection exists between the degree of relevancy of the evidence and the need for instructions as to the use that could be made of the testimony since highly relevant evidence could still be extremely prejudicial to the accused and be misused by the jury in reaching their verdict.

Section 686(1)(b)(iii) of the Criminal Code should not have been invoked here. The evidence was not so overwhelming that the jury would have inevitably convicted the appellant if the judge had properly instructed them as to the use they could make of that testimony. Credibility was a large issue at trial, and it is impossible to know what was in the minds of the jurors and how they were affected by the unrestricted admission of the evidence in question. The assessment of whether to apply the curative provision is complicated by the fact that there were multiple charges which involved included offences, with the result that a properly instructed jury might have convicted but not on all the charges or for different offences.

Per Lamer C.J. and Sopinka J.: The appeal should be allowed and a new trial ordered for the reasons given by Iacobucci J. The evidence of complainant's brothers was admissible but the absence of instruction from the trial judge as to the limited purpose for which the evidence could be used required a new trial. This was not a case for the application of s. 686(1)(b)(iii) of the Criminal Code. In order to decide that, notwithstanding the judgment of the trial court could be set aside on the basis of a wrong decision on a question of law, there was no substantial wrong or miscarriage of justice, the appellate court must be satisfied by the Crown that the verdict at trial would necessarily have been the same if the error had not been committed.

In deciding whether s. 686(1)(b)(iii) should be applied, it must be asked if the guilty verdict, had the jury been properly instructed, would necessarily have been the same in the sense that any other verdict would have been unreasonable or not supported by the evidence. This exercise must be conducted with respect for the jury's function. It is generally undesirable to speculate as to the basis upon which a jury might or might not have accepted certain evidence and rejected other evidence.

The absence of the appropriate direction concerning the evidence of complainant's brothers cannot be safely assumed to have had no material effect on the deliberations of the jury. There was no instruction, as required by law, that this evidence not be relied upon as proof that the accused is the sort of person who would commit the offence charged and on that basis infer that the accused is in fact guilty. Indeed, there was an invitation to do exactly what the jury ought to have been clearly told not to do. Three possible effects of such evidence upon the jury are: (1) the jury may convict based on propensity; (2) the jury might convict to punish for past acts; and (3) the jury might become confused and substitute a verdict with respect to the past acts for a verdict on the charges in issue. The jury's verdict would not necessarily have been the same had the trial been conducted in accordance with the law.

Per L'Heureux‑Dubé J. (dissenting): The impugned evidence was relevant and, as its probative value outweighed its prejudicial effect, was properly admissible. The failure of a trial judge to instruct a jury adequately concerning the use that can be made of evidence which tends to show bad character may constitute an error of law. The charge should be considered in its entirety and be examined in the light of what was effectively conveyed to the jurors. In this case, the jury was adequately instructed concerning the applicable principles.

A court is entitled to consider the strategy of the parties in determining whether or not there was an error in the instructions to the jury. Here, defence counsel made an active tactical decision not to object to the evidence of one brother, or the instructions, but deliberately used the evidence in a strategy designed to illustrate that the allegations were so heinous as to be improbable.

Under s. 686(1)(b)(iii) of the Criminal Code, a court must ask whether a properly instructed and reasonably acting jury would have necessarily arrived at the same conclusion, and may affirm the conviction given an affirmative answer. In determining whether there has been a miscarriage of justice, a court must examine the case in its totality. Here, the evidence was overwhelming, and no jury, properly instructed and acting reasonably, could possibly have acquitted the accused. The result of a re-trial would necessarily be the same and the accused cannot be said to have been deprived of his right to a fair trial. This Court can appropriately apply the curative provisions of the Code.

Per Gonthier J. (dissenting): The evidence was admissible for the reasons stated by Iacobucci and L'Heureux‑Dubé JJ. The reasons of L'Heureux‑Dubé J. with respect to the adequacy of the charge and the application of the Code's curative provisions were agreed with. The trial judge's instructions were adequate, having regard to the circumstances of this case, including the defence counsel's full use of the evidence in support of the defence that the allegations were so heinous that it was improbable that they would have occurred or not have been reported. Further, the evidence supporting the guilt of the accused was overwhelming and s. 686(1)(b)(iii) of the Criminal Code should be applied to remedy any defect.

Cases Cited

By Iacobucci J.

Referred to: R. v. Kyselka (1962), 1962 CanLII 596 (ON CA), 133 C.C.C. 103; R. v. Clarke (1981), 1981 ABCA 222, 63 C.C.C. (2d) 224; R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398; Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909; R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595.

By Lamer C.J.

Referred to: Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111.

By L'Heureux‑Dubé J. (dissenting)

Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277; Young v. The Queen, 1981 CanLII 55 (SCC), [1981] 2 S.C.R. 39; R. v. Demeter (1975), 1975 CanLII 685 (ON CA), 25 C.C.C. (2d) 417; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670; R. v. Guenot, Kocsis and Lukacs (1979), 1979 CanLII 2845 (ON CA), 51 C.C.C. (2d) 315; Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739; Fanjoy v. The Queen, 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233; Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834; R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 237(1), 686(1)(a)(i), (b)(iii), 691(1)(a).

APPEAL from a judgment of the Nova Scotia Court of Appeal (1991), 1991 CanLII 4573 (NS CA), 69 C.C.C. (3d) 193, 107 N.S.R. (2d) 231, 11 C.R. (4th) 56, dismissing an appeal from conviction by Nathanson J. Appeal allowed, L'Heureux‑Dubé and Gonthier JJ. dissenting.

Craig M. Garson, for the appellant.

Robert C. Hagell and Robert Lutes, for the respondent.

The reasons of Lamer C.J. and Sopinka J. were delivered by

//Lamer C.J.//

Lamer C.J. -- I agree that this appeal must be allowed and a new trial ordered for the reasons given by Justice Iacobucci. I agree that the evidence of L.L. and T.B. was admissible but that the absence of instruction from the trial judge as to the limited purpose for which the evidence could be used requires a new trial.

The key issue, in my view, is whether this is a case for the application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46. In my respectful opinion, this is not a case for the application of s. 686(1)(b)(iii) for reasons which I will briefly develop.

The principles relating to s. 686(1)(b)(iii) have been clearly articulated by a series of decisions of this Court. The section reads as follows:

686. (1) On the hearing of an appeal against a conviction . . . the court of appeal

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

The law is clear that in order to decide that, notwithstanding the judgment of the trial court could be set aside on the basis of a wrong decision on a question of law, there was no substantial wrong or miscarriage of justice, the appellate court must be satisfied by the Crown that the verdict at trial would necessarily have been the same if the error had not been committed (see, e.g. Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739, at p. 744, cited with approval by Lamer J. (as he then was) for the Court in Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, at p. 328).

As Cartwright J. noted in Colpitts, the discharge of this burden by the Crown is a condition precedent to the right of the appellate court to apply the terms of the subsection, but the court is not bound to apply the subsection merely because this onus is discharged. Moreover, as he further pointed out, there is a danger that if appellate courts resort too readily to the proviso, "the judges would in truth be substituted for the jury, the verdict would become theirs and theirs alone, and would be arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords" (see Cartwright J. in Colpitts, supra, at p. 744).

Unless used with great circumspection, the provisions of s. 686(1)(b)(iii) of the Code would effectively deprive accused persons of the right to have their guilt or innocence determined by a properly instructed jury of their peers.

In applying s. 686(1)(b)(iii), it is useful to consider it in combination with s. 686(1)(a)(i), which permits the appellate court to allow the appeal "where it is of opinion that . . . the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence". The relationship between these two provisions was outlined by McIntyre J. for the Court in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. In the course of his reasons, on behalf of the Court, McIntyre J. referred to Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834, citing with approval a statement from my judgment therein to the effect that before an appellate court can rely on what is now s. 686(1)(b)(iii), the Court must "first make a finding that no jury properly charged could reasonably acquit" (see McIntyre J. in R. v. Yebes, at p. 182 and Lamer J. (as he then was) in Mahoney v. The Queen, at pp. 857-58). More recently this Court in R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, Sopinka J. said at p. 916:

On the other hand, if the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal rules have been observed, then the accused is entitled to an acquittal or a new trial in accordance with the law. The latter result will obtain if there is legally admissible evidence on which a conviction could reasonably be based. The court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond a reasonable doubt because the accused is entitled to that decision from a trial judge or jury who have all the advantages that have been so often conceded to belong to the trier of fact. If the Court of Appeal were to make that decision the accused would be deprived of a trial to which he or she is entitled, first, by reason of the abortive initial trial and second by the Court of Appeal. There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction. These limitations on the powers of the Court of Appeal are the result of the combined effect of s. 686(1)(a)(ii), (b)(ii) and (iii) and s. 686(2). By virtue of s. 686(1)(b)(ii) the Court of Appeal cannot dismiss the appeal if it has found an error of law unless the curative provision embodied in s. 686(1)(b)(iii) applies. If the appeal is not dismissed it must be allowed, and pursuant to the provisions of s. 686(2) either an acquittal or a new trial must be ordered.

I therefore approach the question of whether this is a case in which the proviso of s. 686(1)(b)(iii) should be applied by asking whether, if the jury had been properly instructed, the verdict of guilty would necessarily have been the same in the sense that any other verdict would have been unreasonable or not supported by the evidence. This exercise must be conducted with respect for the function of the jury, whose role it is to determine what evidence of which witnesses they accept, the weight it should be accorded and, in the final analysis, whether there exists a reasonable doubt about the guilt of the accused.

In approaching the question in this case, it is essential to bear in mind that, in the final analysis, the case turned on questions of credibility. Depending on what evidence was accepted, there certainly could have been ample evidence upon which a jury properly instructed could convict on the charges upon which this jury convicted the accused. However, verdicts of acquittal on all counts on the trial record as it stands would, in my respectful view, not be susceptible to be set aside as being unreasonable.

It is generally undesirable to speculate as to the basis upon which a jury might or might not have accepted certain evidence and rejected other evidence. This is all the more true when there is to be a new trial. Without in any way suggesting that a jury failed, or in fact should have failed, to accept any or all of the Crown evidence in this case, their decision to do so would not have been unreasonable in the circumstances of this case. The allegations were very old because there had been a long delay in bringing the allegations to the attention of the police. The accused testified in answer to the charges and denied everything. The deliberations of the jury were not short. The jury retired just after 12:00 noon, and returned just after 5:00 p.m. that afternoon with a request to re-hear certain parts of the evidence. A verdict was not returned until 10:40 a.m. the following morning. The jury acquitted on the charge of procuring a miscarriage, although there was evidence from the complainant relating to that charge. None of these considerations, of course, is in any way conclusive, but they underline the dangers inherent in speculating as to what may have been in the jury's mind as it reached its verdicts. Everything depends on what evidence was accepted and what evidence was not accepted in the face of a sworn denial of all charges from the accused in the witness box.

I then turn to the question of whether the absence of the appropriate direction concerning the evidence of T.B. and L.L. can be safely assumed to have had no material effect on the deliberations of the jury. With respect to those of a contrary view, I am quite unable to reach any such conclusion in all of the circumstances of this case. As Iacobucci J. properly says, the evidence of L.L. and T.B. tends to show that the appellant is a person of bad character with a propensity for violence. I agree with Iacobucci J. and Justice L'Heureux-Dubé that, notwithstanding this possible prejudicial effect, the evidence in the circumstances of this case was nonetheless admissible because it was relevant to several serious issues in the case such as the defence of innocent association, the system of violent control that the appellant exercised over the family, and the suggestion that Mrs. L. was responsible for the complainant's physical injuries. However, the potential of the prejudicial effect of this evidence cannot be ignored.

There was no instruction, as in my opinion the law requires, that this evidence not be relied upon as proof that the accused is the sort of person who would commit the offence charged and on that basis infer that the accused is in fact guilty (see R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at p. 128).

As Sopinka J. pointed out in R. v. D. (L.E.), there are three possible effects of such evidence upon the jury: first, the jury may convict based on propensity; second, the jury might convict to punish for past acts; and third, the jury might become confused and substitute a verdict with respect to the past acts for a verdict on the charges in issue. The evidence of T.B. and L.L. raised serious dangers that these improper and unjust effects might flow. Consider how the theory of the Crown was put to the jury by the trial judge:

Mr. [F.F.B.]'s evidence was evasive and contradictory on numerous occasions. No independent character witnesses were called and significantly his sons were not called to testify.

It is inconceivable that so many of the children would come forward with their evidence of cruel games, physical abuse, sexual abuse, if it did not happen. The defendant has denied it all.

It is clear from the children's evidence that each one of them had different memories of those years in [T.]. However, the constant theme in their evidence is cruel games, physical, mental and sexual abuse and control, exercised by Mr. [F.F.B.]. [Emphasis added.]

The theory of the Crown as put to the jury by the trial judge was an invitation to the jury to infer F.F.B.'s guilt of the counts in the indictment on the basis that he was a person with the propensity for cruelty and violence to children. In short, it was an invitation to the jury to do exactly what the law prohibits. Not only was there no instruction that this should not be done, as in my view the law requires; there was, in fact, an invitation to do exactly what the jury ought to have been told, in the clearest possible terms, not to do.

In these circumstances, it can scarcely be concluded that the verdict of the jury would have been the same had the trial been conducted in accordance with the law. Upon the evidence adduced, a verdict of guilty was justified, but not inevitable. A verdict of acquittal would not have been unreasonable. The absence of the required instruction, in the circumstances of this case and in light of the way the theory of the Crown was put to the jury was a serious error cutting to the heart of the manner in which the jury should approach the evidence. A clearer case for a new trial is difficult to imagine. The application of s. 686(1)(b)(iii) is completely inappropriate.

I therefore cannot agree with my colleague L'Heureux-Dubé J. concerning the application of s. 686(1)(b)(iii) in this case.

L'Heureux-Dubé J.'s reasons, in my respectful opinion, fall into error with respect to the dangers of prejudice created by the sort of evidence here in issue. She says at p. 000:

The totality of evidence in this case produces a strong sense of moral revulsion, and it would not be surprising if the jury were to conclude that the appellant was in fact a bad person. Such a conclusion does not, in itself, create a problem. The problem arises where a jury uses this conclusion to make the further conclusion, in the absence of evidence of guilt, that the accused is guilty because he is the type to do such atrocious acts. [Emphasis in original.]

With respect, this is not the law. It is precisely the very chain of reasoning against which the jury is to be cautioned; they are not to be told to go ahead and use evidence of propensity as evidence of guilt provided there is other evidence, as my colleague implies in the quoted passage. They should be told, but were not here, to put that chain of reasoning out of their minds.

In order to reach the conclusion that the evidence of the Crown is "compelling" and its weight "staggering" my colleague must assume that Crown witnesses are credible and that the evidence of the defence is not. This conclusion appears to be premised on the fact that "the complainant and her family have already lived through an experience of unspeakable violence" (at p. 000, emphasis added). These are matters which the law, justice and the public interest require to be entrusted to a properly instructed jury.

I would allow the appeal and order a new trial.

The following are the reasons delivered by

//L'Heureux-Dubé J.//

L'Heureux-Dubé J. -- I have had the advantage of reading the reasons of my colleague Justice Iacobucci, and agree with his conclusion that the evidence of L.L. and T.B. was admissible. In my opinion, the testimony was relevant and was therefore properly admissible subject to a weighing of the probative value against any prejudicial effect. Both the trial judge and the majority of the Court of Appeal agreed on this point. In this regard, I agree with Hallett J.A. of the Nova Scotia Court of Appeal who said (1991), 1991 CanLII 4573 (NS CA), 107 N.S.R. (2d) 231, at pp. 255-56:

In my opinion, (L.L.'s) evidence, which was set out in some considerable detail in the decisions of Justices Jones and Chipman, was admissible not as similar fact evidence but simply because it was relevant and highly probative to explain to the jury how these assaults on (P.A.L.) could have occurred and continued over so many years in this crowded household and nothing was ever said. The evidence disclosed that Mr. (L.) was rarely home and Mrs. (L.) was generally at work which left the appellant in charge of these young children. Without the evidence of his cruelty to these captive children and the total domination of them as a result of their fear of him, there is no explanation of why none of the children, including (P.A.L.), ever spoke of what was taking place. It is relevant and probative because without it this horror story, cloaked in secrecy for some 25 years, would not seem credible.

(L.L.'s) evidence was admissible to show the circumstances that existed in the household during the years these assaults on (P.A.L.) took place. I would prefer not to cloak the evidence with the questionable mantle and trappings of "similar fact" evidence to support its admissibility. (L.L.'s) evidence of the appellant's cruelty, although it certainly proves the appellant's disposition to violence and is prejudicial, was, in the peculiar circumstances of this case, admissible for the reason I have stated.

The appellant was certainly entitled to a fair trial and to have excluded evidence adduced solely to show bad disposition. However, (L.L.'s) evidence was not introduced for that sole purpose. The law does not immunize the appellant from having relevant evidence adduced by the Crown to show the circumstances and setting in which the assaults on (P.A.L.) were alleged to have taken place.

The only remaining issue, as my colleague asserts, is whether the trial judge made an error in law in instructing the jury as to the use that could be made of this evidence. If the charge is adequate in that respect, that is the end of the matter. If not, should the curative provision of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, apply?

Did the Trial Judge Err in Instructing the Jury?

The failure of a trial judge to instruct a jury adequately may constitute an error of law. In determining whether or not a charge is inadequate, there are some preliminary considerations that must be kept in mind.

First, one must remain cognizant of Dickson J.'s (as he then was) observation in Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277, at p. 285:

A jury charge should not be anatomized, cut in pieces and examined part by part, as though it were a plant or animal in a laboratory experiment.

Lamer J. (now Chief Justice) confirmed in Young v. The Queen, 1981 CanLII 55 (SCC), [1981] 2 S.C.R. 39, at p. 45, a judge's charge "should be considered in its entirety and be examined in the light of what was effectively conveyed to the jurors." (See also R. v. Demeter (1975), 1975 CanLII 685 (ON CA), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436).

Second, in examining the charge and its possible effect on the jury, the court is entitled to assume that juries are both reasonable and intelligent. In this regard, I would repeat the words of Dickson C.J. in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 692:

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. [Emphasis in original.]

In light of these remarks, I refer to the relevant portion of the charge to the jury. The trial judge commented as follows:

It is a fundamental principle of criminal law that the evidence as to one count in the indictment cannot be used to prove the guilt of an accused person on another count. For example, an accused may be charged in one count with the offence of theft and in another count with the offence of assault. Both incidents may have occurred at different times or involve different victims. In that situation, it would be wrong to use the evidence relating to the offence of theft in determining whether the accused was guilty of assault. . . .

In the present case, [F.F.B.] is charged with six counts covering four different offences. There are two counts of each of two of those offences and two counts of other offences. When considering the evidence, do not use the evidence as to one count to try to prove guilt on another count. And when examining the evidence as to one count, you should not conclude that Mr. [F.F.B.] is a person whose character or disposition is such that he likely committed the offence described in any of the other counts of the indictment. [Emphasis added.]

Reading the charge as a whole, I cannot conclude that the jury was inadequately instructed concerning the applicable principles, nor that they were incapable of understanding the instructions given them. The trial judge instructed the jury that evidence of one offence could not be used to prove another offence, and that the evidence should not be used to draw conclusions about F.F.B.'s character or disposition. I believe it is noteworthy that the jury did not find the accused guilty of all six charges on the Bill of Indictment, but rather acquitted the accused of the charge related to procuring a miscarriage (s. 237(1) of the Criminal Code). If the jury had found the accused guilty on all charges, I would not necessarily conclude that the jury had used the evidence of L.L. improperly. However, the fact that the jury did not convict on all grounds supports the conclusion that the jury understood the principles of law, that they properly followed the instructions of the trial judge, and that they found the accused guilty of specific charges based solely on the evidence before them.

Although the instructions could have been more explicit, in the totality of the circumstances of this case, the directions given were adequate. One such circumstance of particular importance was the defence counsel's own use of the evidence in question.

Tactics of Defence Counsel

Defence counsel did not object to L.L.'s evidence, nor to the instructions given to the jury. The trial judge provided an opportunity for counsel to voice any objections to both evidence and instructions. Though defence counsel did in fact raise several objections throughout the trial, he specifically did not raise objections concerning L.L.'s evidence or the related portion of the instructions to the jury.

I am not suggesting that failure to object at trial will preclude counsel from alleging on appeal that an error was made. Mere silence of counsel cannot displace the right of an accused to a fair trial. However, it is important to consider the reasons for counsel's failure to raise any objection to L.L.'s evidence. In this regard, the comments of Arnup J.A. of the Ontario Court of Appeal in R. v. Guenot, Kocsis and Lukacs (1979), 1979 CanLII 2845 (ON CA), 51 C.C.C. (2d) 315, at p. 320, are apposite:

No slip or mistake of counsel should be permitted to bring about a miscarriage of justice, but on the other hand in considering the weight of the position taken in this Court with respect to an alleged omission on the part of the trial Judge of the kind mentioned we think we are quite entitled to take into consideration the position which was deliberately and forcefully taken by counsel for that appellant at the trial.

Counsel for the defence not only failed to object to the evidence of L.L., but also used it to illustrate that the allegations were so heinous as to be improbable. In the closing address to the jury, counsel specifically referred to this evidence, and stated that "the accusations against [F.F.B.] have to be viewed in the light of all of these circumstances". Counsel went on to say:

It's almost as if the Crown witnesses would want you to believe . . . that for ten years of Mr. [F.F.B.]'s 55 years of life, he was some sort of man who took on subhuman proportions and I suggest to you that that's highly unlikely.

The failure to object was neither accidental or inadvertent. Counsel was not simply caught off guard, but had a specific strategy. This is clear in comments made by defence counsel to the Justices of the Nova Scotia Court of Appeal, as cited in the reasons for judgment of Chipman J.A., at p. 250:

But, you know, it's one of those things when you're doing the trial, sometimes the more absurd it sounds, I mean, we were in a difficult situation. We had --

Justice Jones: No question about that.

Mr. Coady: -‑ a complainant and we had corroboration.

Justice Hallett: Yes, (T.), (D.).

Mr. Coady: (T.). In my mind, the evidence of (T.B.), was, it carried the day. I think his evidence was very very important. He was one of the best witnesses that the Crown could ever hope to have and that . . . so it became a situation where, to some degree, the more bizarre, the more heinous and the more absurd that the allegations in totality were, probably the greater it fed any possible hope that we had for reasonable doubt and they were given great rein by not objecting and they were cross‑examined at length about it and it was focused on.

Now, that obviously it wasn't sufficient to erode the conclusion of the Jury, but I just leave it with you. It's one of those things, it's a judgment call you make during the trial when you're in a tough situation.

Justice Hallett: At that point in time, you felt that (F.F.B.) was in great jeopardy of being found guilty, even before (L.L.) was called.

Mr. Coady: No question about that.

Counsel was of the opinion that the evidence of T.B. "carried the day", and attempted to make strategic use of the evidence of L.L. to raise a reasonable doubt. The Court is entitled to consider this strategy in determining whether or not there was an error in the instructions to the jury. Given that the failure to object was strategic, that counsel was given a full opportunity to object or to make suggestions as to the instructions, and the wording of the judge's address to the jury which I outlined earlier, I conclude that the instructions to the jury were adequate.

However, even if I were wrong in my conclusion as to the adequacy of the instructions, I would without hesitation apply s. 686(1)(b)(iii) of the Criminal Code to remedy any defect.

Section 686(1)(b)(iii) of the Criminal Code

The curative provision of the Criminal Code reads as follows:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; [Emphasis added.]

There is no dispute as to the relevant test under this section. The test was set out by this Court in Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739, at p. 756. Here, Spence J. stated the rule as follows:

If there is any possibility that twelve reasonable men, properly charged, would have a reasonable doubt as to the guilt of the accused, then this Court should not apply the provisions of [s. 686(1)(b)(iii)] to affirm a conviction.

Cartwright J. clarified the burden involved at p. 744:

. . . once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred.

The Court must ask whether a properly instructed and reasonably acting jury would have necessarily arrived at the same conclusion. If this question can be answered in the affirmative, then there has been no substantial wrong, no miscarriage of justice, and the Court may affirm the conviction. To decide whether there has been a miscarriage of justice, the Court must examine the case in its totality. As McIntyre J. stated in Fanjoy v. The Queen, 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233, at p. 240:

It is not every error which will result in a miscarriage of justice, the very existence of the proviso to relieve against errors of law which do not cause a miscarriage of justice recognizes that fact.

It is thus critical to consider all the evidence that was available to the jury. There was, of course, the evidence of P.A.L. She told a nightmarish story of physical and sexual abuse. She spoke of sexual molestation as a child, of forcible rape at 10 years of age, and of being rushed to the hospital because of the resulting haemorrhaging. She told of the appellant grinding her face into the ground with his foot, holding her head under the water in a bathtub and threatening to bury her with her dead brother, cutting her legs with knives, burning her with cigarettes and cigarette lighters. She told of having a broken bottle stabbed into her leg, and silence and compliance obtained through threats to burn down the house and kill her family, of giving birth twice before the age of 16.

This disturbing evidence was supported by other witnesses. T.B. saw the accused have intercourse with P.A.L. when she was 16. D.M.L. confirmed seeing the accused smash P.A.L.'s face into the side of a car. She also was a witness to years of sexual abuse:

A. . . . I remember seeing on occasions, [F.F.B..] come in our bedroom and have intercourse with [P.A.L.]. I remember [P.A.L.] saying no, no. He never said an awful lot. He just did as he felt like. I did pretend I was asleep at the time. I didn't . . . I was only young too. I never told [P.A.L.] until later on in the years that I did know this, because I felt . . . I couldn't say anything to my mother about it, in fear and I felt too, that I was . . . I felt bad because I couldn't say anything. I felt that I was doing [P.A.L.] an injustice at the time, because I didn't want it happening to me. So, I pretended I was snoring and not seeing anything, it wouldn't happen to me.

Q. You mentioned you were young. How old were you when you . . . When you remember this, how old do you feel you were?

A. I was around ten, eleven.

Q. Can you remember how often it happened?

A. It happened, well it happened quite often, but I wasn't always awake either, I wouldn't think, but it happened quite often. I mentally in my head, tried to block it out, but I found it hard sleeping at night, knowing what was going on.

Q. Do you know how long it continued?

A. It continued right up until he left.

There was the evidence from Mrs. L. which corroborated elements of both P.A.L.'s and T.B.'s testimony. Mrs. L. told of breaking the lock on a cabinet belonging to the accused, and finding items which belonged to P.A.L. but which had gone missing. There was evidence of P.A.L.'s two pregnancies, and hospital records verifying the internal injuries sustained by P.A.L. when she, according to the accused, fell on a stick. There were remaining scars on her body which provided additional evidence of physical abuse.

It is in the context of all this evidence, that we must consider the evidence of L.L. He gave evidence of being beaten, hung from the bannister by a rope, deprived of food, burned with cigarettes, locked outside in the winter wearing only shorts, tied up and locked in a small dark room, made to stand naked in the corner, of violent games played with knives and hammers. It should be noted that this evidence, as outrageous and unbelievable as it seems, was supported by the evidence of the other witnesses. T.B. testified that the accused had burned the children with cigarettes, and carved his initials into the children's hands with razor blades. D.M.L. told of the violent games with knives and straps, of children locked in dark rooms, of standing naked in the corner. She told of the accused's threatening to kill her if she spoke of these things. W.L. spoke of the violent environment, of the control exerted over the children by the appellant, of children hung on coat hooks by their belts, of scars on his arm where the appellant had carved his initials.

This evidence did not paint the appellant in an attractive light, but it was highly relevant to help explain the atmosphere in which the offences against P.A.L. took place. The totality of evidence in this case produces a strong sense of moral revulsion, and it would not be surprising if the jury were to conclude that the appellant was in fact a bad person. Such a conclusion does not, in itself, create a problem. The problem arises where a jury uses this conclusion to make the further conclusion, in the absence of evidence of guilt, that the accused is guilty because he is the type to do such atrocious acts.

It should be clear from the above that this is not a case where the jury was required to make a finding with a limited amount of evidence. On the contrary, the evidence presented against the accused was overwhelming. Defence counsel had good reason to fear that his client was in great jeopardy of being found guilty. Even had the evidence of L.L. been excluded completely, the remaining evidence was so compelling as to necessitate that a jury, properly instructed and acting reasonably, would return a finding of guilt. There was no room here for any doubt.

After considering all the evidence presented, I can say unequivocally that no jury, properly instructed and acting reasonably, could possibly have acquitted the accused. As McIntyre J. wrote in Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834, at p. 855, "[t]he errors alleged lose their significance in the face of this inevitable conclusion." I would reiterate my observation in R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, that where the result of a re‑trial will necessarily be the same, a new trial is not in the best interests of the administration of justice. No substantial wrong or miscarriage of justice has occurred in this case. The result of a re‑trial would necessarily be the same, and it cannot be said that the accused has been deprived of his right to a fair trial. It is thus just and appropriate for this Court to apply the curative provisions of the Code.

For these reasons, I find myself startled that, after remarking, at p. 000, that "the evidence was not so overwhelming that the jury would have inevitably convicted the appellant"; my colleague concludes, at p. 000, that "this is not an appropriate case to invoke the curative provision". Quite frankly, if the curative provision cannot be applied here, I do not know where it can be applied. The weight of evidence in this case is staggering. To refuse to apply the provision in these circumstances is to render the curative provision impotent and enfeeble the meaning of the word "justice". This Court must give substance to the term "miscarriage of justice". Justice requires that all fairness be accorded an accused, but where, as in this case, the accused has in fact been treated with fairness, justice also requires a consideration of the public interest.

The Court cannot be blind to the ramifications of sending this matter back for re‑trial. Apart from the time and expense to the public purse in terms of courts, prosecutors and defence lawyers, the complainant and her family have already lived through an experience of unspeakable violence as well as the trauma of a trial. A new trial will require them to once again re‑live experiences that should not be experienced even once. Given that there was no miscarriage of justice in the first trial, this would be more than "regrettable". In the circumstances of this case, a new trial would itself, in my view, be a miscarriage of justice, the very type of miscarriage that the curative provision of the Code was meant to prevent.

Since writing these reasons, I have had occasion to read those of the Chief Justice. I agree with his observation that the key issue before the Court is to determine whether or not the curative provision should apply, and that the exercise (at p. 000)

must be conducted with respect for the function of the jury, whose role it is to determine what evidence of which witnesses they accept, the weight it should be accorded and, in the final analysis, whether there exists a reasonable doubt about the guilt of the accused.

The law is well settled, as the Chief Justice notes, at p. 000, that determinations as to credibility of witnesses, and the weight to be given to the evidence "are matters which the law, justice and the public interest require to be entrusted to a properly instructed jury." My reasons do not depart from these principles.

I totally disagree with the Chief Justice that the case essentially turns on credibility. In most if not all cases, a jury must make determinations on credibility, but there is nothing here to suggest that credibility was more or less of an issue than in any other case. The issue before us is not one of credibility, but is rather of weighing the evidence in its totality.

With respect, I believe that the Chief Justice misinterprets my comments concerning the morally repugnant nature of the evidence in this case. The law is clear that a jury should be instructed not to use evidence of propensity as evidence of guilt. However, my comments do not concern the instructions to be given by a trial judge to a jury, but rather, the task facing an appellate court. This task is not to consider what the jury may or may not have thought, but to examine whether the entire body of evidence before the jury was such that the court can be satisfied that a properly instructed and reasonably acting jury would reach the same conclusion. The presence of such evidence is thus crucial to a determination that the curative provision can be properly applied. In my view, the evidence before the Court in the present case is such that the curative provision should apply.

In the result, I would dismiss the appeal.

The judgment of Iacobucci and Sopinka JJ. was delivered by

//Iacobucci J.//

Iacobucci J. -- This appeal deals primarily with two questions: the rule of evidence which excludes evidence of an accused's bad character, and the adequacy of the trial judge's charge to the jury with respect to evidence that tends to show an accused's bad character.

I. Facts

F.F.B., the appellant, is the uncle of P.A.L., the complainant. The appellant lived with his sister E.L.'s family during the fifties and sixties in Nova Scotia. Mr. and Mrs. L. were rarely at home and F.F.B. was responsible for the care of the L.'s twelve children. P.A.L. testified that the appellant began abusing her physically and sexually when she was six to eight years old and continued to do so until she was sixteen, at which time the appellant left the L. household. P.A.L. testified that the sexual abuse began with kissing, escalated to sexual touching and culminated in sexual intercourse when she was ten years old.

The first incident of sexual intercourse allegedly resulted in P.A.L.'s hospitalization for twelve days with serious internal bleeding; she and the appellant both related at the time that she had injured herself while playing on the bannister of the front veranda. P.A.L. testified that a month after her return from the hospital, the appellant commenced to have sexual intercourse with her daily. P.A.L. gave birth to two sons at ages fifteen and sixteen, allegedly as a result of the sexual abuse by the appellant. Stories were apparently fabricated as to how these pregnancies occurred. P.A.L. was a shy person who had little contact outside the home; she testified that the appellant used constant threats and fear to enforce his will on her.

P.A.L. testified that during this period she was also subject to repeated physical assaults. She testified to several specific incidents: that the appellant once pushed her to the ground and stepped on her face; that the appellant seriously cut her leg with a broken milk bottle; that the appellant burned her with a cigarette butt; and that the appellant forced her to consume a bottle of castor oil which resulted in her miscarrying a child. She stated that she bears numerous scars which resulted from this abuse. She also testified that the other children in the household were physically abused and terrorized by the appellant.

In 1964, T.B., an older brother of P.A.L., caught the appellant having sexual intercourse with P.A.L. As a result, the appellant was forced to leave the L.'s household. In 1990, P.A.L. saw the appellant in a store. She testified that she decided then to report the alleged assaults to the police. As a result of this report, the appellant was charged with two counts of rape, three counts of assault, and one count of procuring a miscarriage. The appellant denied that any of the incidents described by P.A.L. occurred.

During the course of the trial, the judge decided on a voir dire not to admit the evidence of D.M.L. (the complainant's sister) that she too had been sexually assaulted by the appellant, on the ground that it fell within the similar fact evidence rule and its prejudicial effect was not outweighed by its probative value. However, testimony of the complainant's brothers and sisters was admitted with respect to the violent control that the appellant exerted within the household. The appellant was convicted by a jury on five of the six counts (he was found not guilty of the charge of procuring miscarriage). He was sentenced to a total period of incarceration of 13 years.

The appellant appealed his conviction to the Nova Scotia Court of Appeal on two grounds which were both dismissed. At the conclusion of oral argument, the Court of Appeal requested counsel to make further written submissions on two issues that had been raised in oral argument. One of these related to the admissibility of evidence given by P.A.L.'s brother, L.L., and her step-brother, T.B. The appellant sought to have declared inadmissible those parts of L.L.'s and T.B.'s testimony which related to assaults by the appellant on P.A.L.'s siblings. The appellant was not seeking to exclude the evidence of T.B. that he finally discovered the appellant sexually assaulting P.A.L. and drove F.F.B. out of the house. The appellant's appeal on this ground was dismissed, Chipman and Hallett JJ.A. concurring in separate reasons that the testimony of L.L. and T.B. was admissible. Jones J.A. dissented, holding that L.L.'s and T.B.'s evidence was inadmissible since it was too prejudicial in relation to its probative value, and because it did not come within the parameters of the similar fact exception to the rule which excludes evidence of the accused's bad character. The appellant has appealed the judgment of the Nova Scotia Court of Appeal on this point to this Court as of right, under s. 691(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46.

II. Relevant Legislation

Section 686(1)(b)(iii) of the Criminal Code reads:

686. (1) On the hearing of an appeal against a conviction . . . the court of appeal

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

Section 691(1)(a) of the Criminal Code reads:

691. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents. . . .

III. Judgments of the Courts Below

1. Nova Scotia Supreme Court, Trial Division

As mentioned above, the appellant was convicted by a jury on five of the six counts and sentenced to a total period of incarceration of 13 years. Counsel for the appellant did not object to L.L.'s and T.B.'s testimony at trial and Nathanson J. did not make any ruling concerning the admissibility of that testimony. Neither did Nathanson J. make any reference to the use to which the jury could put L.L.'s and T.B.'s testimony in the charge to the jury.

2. Nova Scotia Court of Appeal (1991), 1991 CanLII 4573 (NS CA), 107 N.S.R. (2d) 231

L.L. did not give any testimony which directly corroborated any of the specific allegations made against the appellant by P.A.L. His testimony, and much of T.B.'s, concerned the abuse that they and the other siblings constantly suffered from the appellant. The appellant argued before the Nova Scotia Court of Appeal that this evidence was inadmissible because it tended to establish his bad character and did not fall within the similar fact evidence exception to the rule which excludes evidence of bad character. The appellant also argued that, even if the evidence was admissible, the jury should have been warned about the use to which L.L.'s and T.B.'s testimony could be put. Two judges of the Court of Appeal, Chipman and Hallett JJ.A., dismissed the appellant's appeal in separate opinions. One judge, Jones J.A., dissented and would have allowed the appeal.

(a) Chipman J.A.

Chipman J.A. was of the opinion that the testimony of L.L. and T.B. was admissible as similar fact evidence. Chipman J.A. held that the test for admissibility of similar fact evidence is that its probative value, in relation to a fact in issue other than the accused's tendency to commit acts such as the offence charged, must outweigh its prejudicial effect. Since the appellant's counsel had not objected to the admissibility of L.L.'s or T.B.'s testimony at trial, the trial judge had not had the opportunity to evaluate explicitly the relevance of the evidence in question and its prejudicial effect. Chipman J.A. felt that it was therefore appropriate for the Court of Appeal to undertake this evaluation. Chipman J.A. held on this issue that the evidence was highly probative in that it established a pattern of dominant behaviour by the appellant which was relevant both to the credibility of the evidence given by P.A.L. (which Chipman J.A. described as "almost incredible") and to why she had waited so long before making a complaint to the police. Both P.A.L.'s credibility and the long delay in coming forward were put in issue at trial by the appellant. Chipman J.A. also held at p. 251 that there was "a degree of distinctiveness, uniqueness and striking similarity between the evidence relating to abuse of the siblings and the abuse which underlies the offences charged against the appellant."

As to the prejudicial effect of the evidence, Chipman J.A. held that it was slight or nonexistent in comparison to the probative value since the evidence put the appellant in a bad light only incidentally. The prejudicial effect of the evidence was further reduced by its contemporaneity with the events narrated by the complainant and by the fact that it did not bear the major burden of proving the Crown's case.

Chipman J.A. held that the evidence had such a high degree of relevance that a warning to the jury not to use the evidence to convict on the basis of a tendency to commit acts such as the offence charged, while desirable, was not necessary. This conclusion with respect to the substantial relevance of the evidence was supported by the fact that the appellant's counsel did not object to it and did not, when given the opportunity, ask the judge to make a further comment on this evidence to the jury.

Finally, Chipman J.A. held at p. 254 that the "evidence pointing to the appellant's guilt is such that I have no doubt but that had appropriate caution been given, the result would necessarily have been the same; verdicts of guilty on the five counts. I would, if necessary, apply s. 686(1)(b)(iii) of the Criminal Code."

(b) Hallett J.A.

Hallett J.A. agreed with Chipman J.A.'s disposition of the appeal at p. 255, but would have found the testimony of L.L. and T.B. admissible "simply because it was relevant and highly probative to explain to the jury how these assaults . . . could have occurred and continued over so many years in this crowded household and nothing was ever said." Hallett J.A. wrote at pp. 255-56:

The evidence disclosed that Mr. (L.) was rarely home and Mrs. (L.) was generally at work which left the appellant in charge of these young children. Without the evidence of his cruelty to these captive children and the total domination of them as a result of their fear of him, there is no explanation of why none of the children, including (P.A.L.), ever spoke of what was taking place. It is relevant and probative because without it this horror story, cloaked in secrecy for some 25 years, would not seem credible.

Hallett J.A. held that the rule excluding evidence of bad character did not apply since the evidence had not been adduced solely to show that the appellant had a bad disposition.

(c) Jones J.A., dissenting

Jones J.A. would have ordered a new trial on the grounds that the testimony of L.L. and T.B. was improperly admitted. Jones J.A. held that this evidence should have been excluded on the ground that it was not similar fact evidence but simply evidence of assaults on L.L. Jones J.A. held that L.L.'s and much of T.B.'s testimony had no relevance to the case and was highly prejudicial as showing bad character. Failure of counsel to object to the evidence did not relieve the trial judge of a duty to exclude it.

Jones J.A. would not have applied s. 686(1)(b)(iii) of the Criminal Code. Jones J.A. held that the evidence was highly inflammatory and might have affected the minds of the jury adversely. On the other hand, the evidence which was properly admissible was not "so overwhelming that the jury would have convicted on all of the counts."

IV. Issues

There are four issues in this appeal:

1. Did the trial judge err in admitting the evidence given by L.L. and T.B. on the ground that it was oath-helping evidence?

2. Did the trial judge err in admitting the evidence given by L.L. and T.B. on the grounds that the evidence was irrelevant to any issue other than the appellant's character or that its prejudicial value outweighed its probative value?

3. If the evidence was admissible, did the trial judge err in not giving the jury special instructions about the use they could make of L.L.'s and T.B.'s testimony?

4. Even if the trial judge erred in admitting the evidence or in not properly charging the jury, should the appeal be dismissed under s. 686(1)(b)(iii) of the Criminal Code on the ground that no substantial wrong or miscarriage of justice has occurred?

V. Analysis

1. Did the Trial Judge Err in Admitting the Evidence Given by L.L. and T.B. on the Ground that it was Oath-helping Evidence?

As already mentioned, this case was appealed to this Court as of right, under s. 691(1)(a) of the Criminal Code. That section allows appeals "on any question of law on which a judge of the court of appeal dissents." Jones J.A., in the Court of Appeal, dissented on the grounds that the testimony of L.L. and much of the testimony of T.B. was inadmissible since it was not relevant to the case and was highly prejudicial. The question of whether or not the evidence was inadmissible on the ground of being oath-helping evidence was not discussed by the Court of Appeal, and therefore was not a "question of law on which a judge of the court of appeal dissent[ed]." Consequently, the appellant cannot raise this as an issue before this Court.

In any event, there is no merit to the appellant's submission. The rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness' credibility before that witness' credibility is attacked. This type of evidence is of the sort that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements. It includes psychiatric evidence that the witness is likely to tell the truth in court (see, e.g., R. v. Kyselka (1962), 1962 CanLII 596 (ON CA), 133 C.C.C. 103 (Ont. C.A.)), evidence of good character called solely to illustrate that a witness is likely telling the truth (see, e.g., R. v. Clarke (1981), 1981 ABCA 222, 63 C.C.C. (2d) 224 (Alta. C.A.)) and polygraph evidence (see, e.g., R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398). The testimony of L.L. and T.B. made no reference to the truthfulness or good character of the complainant, or of themselves. Their evidence was rather corroborative of an issue in the trial that was raised in P.A.L.'s testimony, namely the system of violent domination that the appellant used to control the members of the L. household. While L.L.'s and T.B.'s evidence shored up P.A.L.'s credibility by implication, it was not called solely or even primarily for that purpose. It was not, therefore, oath-helping evidence.

2. Did the Trial Judge Err in Admitting the Evidence Given by L.L. and T.B. on the Grounds that the Evidence was Irrelevant to any Issue other than the Appellant's Character or that its Prejudicial Value Outweighed its Probative Value?

The basic rule of evidence in Canada is that all relevant evidence is admissible unless it is barred by a specific exclusionary rule. One such exclusionary rule is that character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible. As Lamer J. (as he then was) wrote for this Court in Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at pp. 201-02:

Thus came about, as a primary rule of exclusion, the following: disposition, i.e., the fact that the accused is the sort of person who would be likely to have committed the offence, although relevant, is not admissible. As a result evidence adduced solely for the purpose of proving disposition is itself inadmissible, or, to put it otherwise, evidence the sole relevancy of which to the crime committed is through proof of disposition, is inadmissible.

However, evidence which tends to show that the accused is a person of bad character but which is also relevant to a given issue in the case does not fall within this exclusionary rule. As Lamer J. went on to write at p. 202:

This is not to say that evidence which is relevant to a given issue in a case will of necessity be excluded merely because it also tends to prove disposition. Such evidence will be admitted subject to the judge weighing its probative value to that issue (e.g., identity), also weighing its prejudicial effect, and then determining its admissibility by measuring one to the other.

Accordingly, evidence which tends to show bad character or a criminal disposition on the part of the accused is admissible if (1) relevant to some other issue beyond disposition or character, and (2) the probative value outweighs the prejudicial effect.

It is indisputable that the evidence of L.L. and T.B. tends to show that the appellant is a person of bad character, with a propensity for violence. However, there are two questions to be answered: first, is their evidence relevant to some issue other than the appellant's character, and second, does the probative value of the evidence outweigh its prejudicial effect?

Was the testimony of L.L. and T.B. relevant to some issue other than the appellant's character? The respondent argues, and both Chipman and Hallett JJ.A. held, that the testimony of L.L. and T.B. was relevant to establishing a pattern of dominant behaviour by the appellant which was relevant both to the credibility of the evidence given by P.A.L. and to why she had waited so long before making a complaint to the police. Both P.A.L.'s credibility and her long delay in coming forward were put in issue by the appellant. The respondent also argues that the appellant raised innocent association as a defence and that L.L.'s and T.B.'s testimony was admissible to rebut that defence. But the appellant argues that his only defence was that he did not commit the offences with which he was charged to which the evidence in question is irrelevant.

However, both the opening and closing remarks to the jury by counsel for the appellant reveal that the appellant did not assert solely that he did not commit the offences in question. Counsel for the appellant claimed that the appellant was simply a benevolent baby-sitter who looked after the children as a favour to his sister, raising the defence of innocent association. In his closing remarks, counsel for the appellant emphasized that the appellant "did nothing more than assist them [the L.s] in their times of need, when money was tight". Counsel for the appellant also attempted to destroy the complainant's credibility by questioning why she delayed so long in bringing charges, whether her mind was stable given the atmosphere in which she grew up, and how the offences charged by the complainant could have occurred without someone knowing or saying something about it given the crowded conditions of the house. For example, counsel for the appellant addressed the jury as follows in his opening remarks:

How could all of this have happened without someone knowing about it, without someone saying something about it and why is it being said now.

This theme was repeated during counsel's closing remarks. Counsel for the appellant also emphasized throughout the trial that the complainant's mother was abusive towards her children and might be the party actually responsible for the complainant's physical injuries.

Given these various theories raised by counsel for the appellant at trial, it is apparent that the testimony of L.L. and T.B. was relevant to several important issues. The evidence was not tendered solely to show that the appellant was the sort of person likely to commit the offences charged but to rebut the defence of innocent association, to demonstrate the system of violent control that F.F.B. exercised over the family which would explain why the abuse was allowed to occur and why the complainant was too frightened to press charges until much later, and to counter the suggestion that Mrs. L. was responsible for the complainant's physical injuries.

The second question to ask is: does the probative value of L.L.'s and T.B.'s testimony outweigh its prejudicial effect? As Chipman J.A. indicated in the Court of Appeal, counsel for the appellant did not object to the evidence at trial and the trial judge did not therefore make an explicit ruling on its admissibility. Chipman J.A. undertook to evaluate the evidence in the absence of an evaluation by the trial judge, and determined that the probative value was high while the prejudicial effect was low. He therefore held that the evidence was admissible.

Where the evidence sought to be adduced by the prosecution concerns "a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception" (per McLachlin J. in R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 735).

With respect to the evidence in question in this case, it is clearly probative of those aspects of the case which the Crown wishes to prove in response to the issues raised by counsel for the appellant. The appellant's acts of physical violence related by L.L. and T.B. and the fear that the appellant nourished in the children in order to control them are similar to the account given by the complainant of the physical abuse she suffered from the appellant and the terror she felt of him. The evidence given by L.L. and T.B. concerns events that were contemporaneous with the offences charged by the complainant, and offers valid explanations for many of the issues raised by the appellant at trial. In my opinion, although there is prejudice to the appellant involved, the probative value of L.L.'s and T.B.'s testimony outweighs its prejudicial effect and was properly admitted by the trial judge as relevant evidence of which the probative value is not outweighed by its prejudicial effect.

3. If the Evidence was Admissible, did the Trial Judge Err in Not Giving the Jury Special Instructions about the Use They Could Make of L.L.'s and T.B.'s Testimony?

It is an obligation on trial judges that they properly instruct juries as to the use that those juries can make of evidence which is highly prejudicial to an accused in relation to the accused's character. In the case at bar the trial judge did not charge the jury with respect to the use they could make of L.L.'s and T.B.'s testimony. Given that the testimony might have a strong prejudicial effect on the jury and that the jury might then convict on the basis that the accused is a bad person of the sort likely to commit the offences in question, clear directions to the jury about the use that they could make of the testimony were essential. More specifically, the judge was required to explain clearly in the instructions to the jurors that they must not infer from the evidence that tended to show the appellant's bad character that the appellant was guilty because he is the sort of person who is likely to commit the offences in question.

The respondent argues that this type of instruction is a "special" instruction so that the trial judge's failure to properly charge the jury in this respect is not a reversible error of law. However, in R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, this Court directed that a new trial be held where the trial judge had not charged the jury properly with respect to the use they could make of evidence admitted as an exception to the bad character evidence exclusionary rule. Sopinka J. wrote for the majority that the trial judge's instruction to the jury is necessary to counteract three possible effects of the evidence on the jury: that the jury might convict based on propensity, that the jury might convict to punish for past acts, and that the jury might become confused and substitute a verdict with respect to the past acts for a verdict on the charges in issue. In light of the seriousness of these possible consequences, Sopinka J. held at p. 128:

. . . the trial judge should charge the jury in a manner that will minimize as far as possible the dangers referred to above. The jury should be instructed that if it accepts the evidence of the similar acts, that evidence is relevant for the limited purpose for which it was admitted. The jury must be specifically warned that it is not to rely on the evidence as proof that the accused is the sort of person who would commit the offence charged and on that basis infer that the accused is, in fact, guilty of the offence charged.

The concern is that the evidence of bad character is potentially so inflammatory that without proper instructions, a jury may misuse the evidence and an accused may thereby be convicted unfairly. This concern arises not only with similar fact evidence but also with evidence that is of a highly prejudicial nature with respect to the accused's character as in the case at bar. Given that this Court ordered a new trial in R. v. D. (L.E.), supra, partially on the ground that the trial judge did not adequately instruct the jury with respect to the limited use they could make of evidence tending to show the accused's bad character, there is no support for the respondent's argument that lack of proper instruction is not a reversible error of law and not ground for a new trial.

In the case at bar, the trial judge admitted the testimony of L.L. and T.B. at large. He did not instruct the jury as to the use they could make of L.L.'s and T.B.'s testimony, although he did caution the jury against using a conviction on one count as evidence of propensity to commit the other counts. The prejudicial effect of that testimony was high enough that lack of proper instruction may have resulted in unfair guilty verdicts. There is no assurance that the jury properly interpreted the evidence in question in the absence of specific instructions by the trial judge. On this ground, therefore, the appeal should be allowed and a new trial ordered.

It should be noted that Chipman J.A. considered the adequacy of the trial judge's charge to the jury. Chipman J.A. held that the trial judge had not commented on the limited use to which the evidence could be put since counsel for the appellant had raised no objection to the testimony and had not requested any special instructions. However, as Jones J.A. pointed out, it is the duty of the trial judge to consider the admissibility of all evidence and to charge the jury properly: absence of comment or objection by counsel for the accused does not vitiate this duty.

Chipman J.A.'s next point was that the trial judge had cautioned the jury that they could not use a conviction on one count before them as evidence of propensity to commit the other counts and that they could only make limited use of the evidence of the appellant's prior convictions. In my opinion, however, this does not cure the charge of its faults with respect to the testimony of L.L. and T.B. which, owing to its prejudicial nature, should have been specifically addressed.

Finally, Chipman J.A. held that the testimony in question had such a high degree of relevance that a charge to the jury, while desirable, was not necessary. With respect, there is no connection between the degree of relevancy of the evidence and the need for instructions as to the use that could be made of the testimony since highly relevant evidence could still be extremely prejudicial to the accused and be misused by the jury in reaching their verdict.

4. Even if the Trial Judge Erred in Admitting the Evidence or in not Properly Charging the Jury, Should the Appeal Be Dismissed under s. 686(1)(b)(iii) of the Criminal Code, on the Ground that No Substantial Wrong or Miscarriage of Justice Has Occurred?

Chipman J.A. held that, even if the evidence was improperly admitted or the jury was improperly charged, he would apply s. 686(1)(b)(iii) of the Criminal Code, to dismiss the appeal and leave the guilty verdicts intact. He was of the opinion, at p. 254, that the evidence pointing to the accused's guilt was "such that I have no doubt but that had appropriate caution been given, the result would necessarily have been the same; verdicts of guilty on the five counts."

Section 686(1)(b)(iii) of the Criminal Code, is for use in exceptional cases only, as this Court has emphasized in two recent cases. In R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, Sopinka J. held for the majority, at p. 916, that s. 686(1)(b)(iii) can only be invoked where "the evidence is so overwhelming that a trier of fact would inevitably convict". In R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, the Court emphasized, at p. 620, "[t]he appropriate standard for the application of s. 686(1)(b)(iii) is an onerous one". The Court quoted Sopinka J.'s reasons from R. v. S. (P.L.), supra, and stated at pp. 620-21:

Accordingly, the question here is whether there is any possibility that the trier of fact would have had a reasonable doubt as to the guilt of the accused had the impugned evidence been removed from their consideration.

The same question may be asked in the context of whether the jury in the instant case could have had a reasonable doubt as to the appellant's guilt had they been properly charged with respect to how they might use the testimony of L.L. and T.B. In my opinion, the evidence was not so overwhelming that the jury would have inevitably convicted the appellant if the judge had properly instructed them as to the use they could make of that testimony. Credibility was a large issue at trial, and it is impossible to know what was in the minds of the jurors and how they were affected by the unrestricted admission of the evidence in question. The assessment of whether to apply the curative provision of the Criminal Code is complicated by the fact that there were multiple charges which involved included offences, with the result that a properly instructed jury might have convicted but not on all the charges or for different offences. In summary, this is not an appropriate case to invoke the curative provision in s. 686(1)(b)(iii) of the Criminal Code.

VI. Conclusion

The evidence of L.L. and T.B. was admissible because it was relevant to several serious issues in the case such as the defence of innocent association, the system of violent control that the appellant exercised over the family which would explain why the abuse was allowed to occur and why the complainant was too frightened to press charges until much later, and the suggestion that Mrs. L. was responsible for the complainant's physical injuries. In my view, the probative value of the testimony of L.L. and T.B. is not outweighed by its prejudicial effect and the evidence was properly admitted.

Although the evidence of L.L. and T.B. was properly admitted, the trial judge failed to charge the jury as to the limited purposes for which the evidence could be used. This is grounds for a new trial, and I would allow the appeal and order a new trial on this basis.

Finally, with respect to the curative provision in s. 686(1)(b)(iii) of the Criminal Code, given that the appropriate standard for applying s. 686(1)(b)(iii) is an onerous one, namely whether or not the evidence properly before the jury was so overwhelming that conviction was inevitable, I do not believe that this is a case to which s. 686(1)(b)(iii) should be applied.

It should be stated that it is highly regrettable that P.A.L. and her family, as well as the appellant, will be forced to undergo a new trial. However, we must be inexorably vigilant to ensure that courts properly follow the rules which provide fair trials to all those charged and tried under the Criminal Code.

Since writing these reasons, I have had the opportunity to read the reasons of the Chief Justice; I agree with them.

VII. Disposition

For the foregoing reasons, I would allow the appeal, set aside the conviction of the appellant, and order a new trial.

The following are the reasons delivered by

//Gonthier J.//

Gonthier J. (dissenting) -- I have had the advantage of reading the reasons of my colleagues, Justices L'Heureux-Dubé and Iacobucci. I am in agreement with both of them that the evidence of L.L. and T.B. were admissible for the reasons which they state. I agree with L'Heureux-Dubé J. that the trial judge's instructions were adequate, having regard to the circumstances of this case which she outlines, including the defence counsel's full use of the evidence in support of the defence that the allegations were so heinous that it was improbable that they would have occurred or not been reported. I am also in agreement with L'Heureux-Dubé J. that the evidence supporting the guilt of the accused is overwhelming and that s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, should be applied to remedy any defect.

I would therefore dismiss the appeal.

Appeal allowed, L'Heureux‑Dubé and Gonthier JJ. dissenting.

Solicitors for the appellant: Scaravelli & Garson, Halifax.

Solicitor for the respondent: The Attorney General of Nova Scotia, Halifax.