



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or broadcast
    or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

(2)
For greater certainty, an order referred to in subsection (1)
    applies to prohibit, in relation to proceedings taken against any person who
    fails to comply with the order, the publication in any document or the
    broadcasting or transmission in any way of information that could identify a
    victim, witness or justice system participant whose identity is protected by
    the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Chamot, 2012 ONCA 903


DATE:  20121221

DOCKET: C53652 & C53670

Doherty, LaForme JJ.A. and Glithero J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Appellant (Respondent)

and

Andrew Chamot

Respondent (Appellant)

Riun Shandler, for the appellant (respondent)

David E. Harris, for the respondent (appellant)

Heard:  November 14, 2012

On appeal from the convictions entered by Justice Tamarin
    M. Dunnet of the Superior Court of Justice, sitting with a jury, dated March 4,
    2011, and from the order quashing a charge of sexual assault, dated April 5,
    2011.

Doherty J.A.:



I



overview

[1]

Shortly after Ms. A.B. came to Canada with her three children to live
    with Andrew Chamot (Chamot), he allegedly began to physically abuse her two
    sons, B. and G., and to physically and sexually abuse her daughter, B.B. 
    Chamot was tried by a jury in 2011 on 16 charges.  The jury returned guilty
    verdicts on eight counts, including a charge of sexual assault spanning the
    period between March 2001 and August 2007 (count 3).  The jury acquitted on the
    remaining eight counts.

[2]

At sentencing, the trial judge quashed the sexual assault charge (count
    3) holding that the count effectively charged two different offences because it
    encompassed a timeframe when B.B. was both under and over 14 years of age (the
    age of consent at the relevant time).  The trial judge gave Chamot credit for
    34 months of presentence custody and sentenced him to an additional 20 months
    on the remaining counts on which he was convicted.

[3]

The Crown appeals pursuant to s. 676(1)(b) of the
Criminal Code
from the order quashing the sexual assault charge.  Crown counsel seeks an
    order restoring the conviction and remitting the matter to the trial judge for
    sentencing.

[4]

Chamot resists the Crown appeal.  He also appeals from the convictions. 
    Chamot seeks a new trial on all counts on which the jury convicted, including the
    sexual assault charge on count 3.

[5]

I would allow the Crown appeal.  The trial judge had no jurisdiction to
    quash the sexual assault charge after the jury had returned its verdict.  Even
    if there was jurisdiction to quash the count, that remedy was not appropriate
    in this case.  Although count 3 did encompass a time period when B.B. was both
    under and over 14 years of age, the trial judge instructed the jury that it
    could only convict on count 3 if the Crown had proven beyond a reasonable doubt
    that B.B. had not consented to the sexual activity.  In light of this
    instruction, the manner in which the allegation in count 3 was framed could not
    have prejudiced Chamots defence to the charge.

[6]

I would also allow Chamots appeal.  The jury necessarily heard a great
    deal of evidence that inevitably cast Chamot in a very bad light.  The trial
    judge did not caution the jury against the potential misuse of that evidence of
    bad character.  A limiting instruction was essential in this case.  The failure
    to give that instruction necessitates a new trial on all counts on which the
    jury returned guilty verdicts, including the sexual assault charge in count 3.


II



the charges

[7]

Chamot and Ms. A.B. first became romantically involved when he visited Poland
    in 2000.  In February 2001, Ms. A.B. brought her family to Canada to live with
    Chamot.  Her son B. was 7, her son G. was 13, and her daughter B.B. was 12. 
    According to the allegations, Chamot began assaulting the children almost
    immediately after they moved in with him.

[8]

Chamot was originally arrested and charged with sexually assaulting B.B.
    in 2004.  B.B. recanted that allegation under pressure from her mother and the
    charges against Chamot were dismissed at a preliminary inquiry.  Chamot returned
    to the family home and, according to B.B., resumed the assaults.  The attacks
    escalated to include repeated sexual intercourse with B.B.  In the summer of
    2007, B., who was about 14, walked in on Chamot and B.B. having sexual
    intercourse in her bedroom.  Shortly afterward, B.B. complained to her mother. 
    B.B. went to the police in 2009 and Chamot was charged with the offences
    against all three children.

[9]

The 16-count indictment and the verdicts returned by the jury are
    summarized below.  A brief description of each allegation follows:



#

Charge

Complainant

Dates

Verdict



1

Sexual interference (s. 151)

B.B.

March 1, 2001  April 30, 2002

Not guilty



2

Sexual exploitation (s. 153)

B.B.

May 1, 2002  April 30, 2006

Guilty



3

Sexual assault (s. 271)

B.B.

March 1, 2001  August 31, 2007

Guilty



4

Uttering threats to cause death (s. 264.1(1)(a))

B.B.

January 1, 2005  August 31, 2007

Not guilty



5

Assault (s. 266)

B.B.

January 1, 2005  August 31, 2007

Not guilty



6

Assault with a weapon (s. 267(a))

B.B.

February 10, 2001  December 31, 2004

Not guilty



7

Assault (s. 266)

G.

February 1, 2001  March 1, 2001

Guilty



8

Assault with a weapon (s. 267(a))

G.

July 1, 2001  August 31, 2001

Guilty



9

Assault causing bodily harm (s. 267(b))

G.

July 1, 2001  August 31, 2001

Guilty



10

Assault (s. 266)

G.

January 1, 2002   December 31, 2002

Not guilty



11

Assault with a weapon (s. 267(a))

G.

March 1, 2002  July 1, 2002

Not guilty



12

Assault with a weapon (s. 267(a))

B.

March 1, 2001  October 31, 2004

Guilty



13

Assault (s. 266)

B.

March 1, 2001  October 31, 2003

Guilty



14

Assault (s. 266)

B.

March 1, 2001  October 31, 2003

Not guilty



15

Assault with a weapon (s. 267(a))

B.

March 1, 2001  December 31, 2004

Not guilty



16

Assault causing bodily harm (s. 267(b))

B.

March 1, 2001  October 31, 2004

Guilty



Count 1  Sexual Interference against B.B.

[10]

B.B.
    testified that Chamot began coming into her bedroom and touching her breasts
    and stomach in 2001 when she was 12 years old.  Initially, he touched her over
    her clothing, but later he put his hands under her clothing.  The sexual
    assaults became more intrusive as time passed.  Chamot forced B.B. to go to the
    basement and undress for him.  He made her pose in the nude in front of a
    mirror and parade around with a book on her head.  Chamot sometimes touched
    B.B.s breasts and vagina.  Chamot denied that any of these activities
    occurred.  He testified that B.B. had never liked him.  The jury acquitted on
    this count.

Count 2  Sexual Exploitation against B.B.

[11]

B.B.
    testified that in May 2002, Chamot began to touch her vagina.  If she resisted,
    he would sometimes beat her.  He also forced B.B. to masturbate him.  B.B.
    described an event in January 2004 when she, Chamot and her mother were lying
    on a mattress watching a movie.  According to B.B. Chamot put his hand on her
    vagina and began to rub it.  Ms. A.B. realized that something was going on and
    confronted Chamot.  This led to Chamots arrest, but the charges were dismissed
    at the preliminary inquiry when B.B. recanted her testimony at the request of
    her mother.

[12]

B.B.
    testified that when Chamot returned to the home after the charges were
    dismissed, he immediately began to sexually assault her on a regular basis.  He
    would come into her room or take B.B. into his room where he would force her to
    masturbate him.

[13]

Chamot
    denied that any of the sexual activity occurred.  He recalled the incident when
    he, B.B. and Ms. A.B. were lying on the mattress watching a movie.  Chamot
    indicated that Ms. A.B. accused him of assaulting B.B. at that time, but that
    he denied it.  He also denied putting any pressure on B.B. to recant her
    allegations.  Chamot testified that his wifes false suggestion that he had
    assaulted her daughter may have been precipitated by earlier discussions about
    sending B. back to Poland to live with a family.  The jury convicted on count
    2.

Count 3  Sexual Assault against B.B.

[14]

The
    allegation in count 3 encompassed the factual allegations in counts 1 and 2.  The
    trial judge also instructed the jury that count 3 included B.B.s allegation
    that she was forced to engage in sexual intercourse with Chamot beginning in
    2004 or early 2005.  B.B. was 16 years of age in 2004.  According to her, she
    was forced to have sexual intercourse with Chamot approximately once per week
    and later, once every two weeks.  She described the incident in 2007 when her
    brother, B., came into her room while Chamot was forcing himself on her.  B.
    also described the incident, although he was not sure of the year.  He
    testified that when he went to B.B.s room to return her cell phone, he heard
    noises as if people were moving in the sheets.  He saw Chamots torso moving up
    and down on the bed.  B. ran from the room and went to his own bedroom.  Chamot
    followed.  Chamot told B. that it was Ms. A.B. in the bed with him and not
    B.B.  B. also testified that his sister told him about the abuse in 2009.

[15]

Chamot
    denied B.B.s allegations.  He also gave evidence that certain details of her
    story, such as the description of her room at the relevant time, were demonstrably
    inaccurate.  The jury convicted.

Count 4  Uttering Threats to Cause Death against B.B.

[16]

B.B.
    testified that when she resisted Chamots sexual advances, he regularly assaulted
    her and threatened to kill her on five occasions if she did not acquiesce and
    remain quiet.  Chamot denied threatening B.B.  The jury acquitted on this
    charge.

Count 5  Assault against B.B.

[17]

This
    count related to the assaults which allegedly accompanied the death threats
    referred to in count 4.  The jury also acquitted on this count.

Count 6  Assault with a Weapon against B.B.

[18]

This
    count related to an event described by B.B. which occurred shortly after she
    and her family came to Canada to live with Chamot.  B.B. testified that she was
    12 years old at the time.  Chamot asked her about her computer work and when
    B.B. said she was already finished, Chamot became angry, dragged her down to
    the basement, pulled off her pants and underwear and beat her about five times
    with computer cables.  B.B. suffered bruising which lasted for about one week. 
    B.B. described at least two other incidents where she suffered similar
    beatings.  Chamot denied that the beatings occurred, although he did agree with
    some of the evidence of B.B. about the events which she claimed precipitated
    the beatings.  The jury acquitted on this charge.

Count 7  Assault against G.

[19]

G.
    testified that in February 2001 at one the first family dinners after the
    family arrived in Canada, Chamot became upset at the way G. had set the table. 
    He picked G. up from his chair by the back of the neck and threw him against
    the hot water radiator. He also punched and kicked him, causing bruising to
    G.s ribcage.  Ms. A.B. also testified that shortly after their arrival in
    Canada, Chamot had assaulted G. at the dinner table.  Chamot testified that at
    a family dinner a few months after Ms. A.B. and her children arrived in Canada,
    he became upset at G. after G. swore at him.  He acknowledged that he hit G. on
    the back of the head with an open hand.  They scuffled in the hallway and
    Chamot forced G. back to his chair at the table.  Chamot denied throwing G.
    toward the radiator.  The jury convicted on this count.

Counts 8 and 9 
    Assault with a Weapon and Assault Causing Bodily Harm against G.

[20]

G.
    testified that in the summer of 2001, Chamot became upset because the boys
    bikes were not put away properly.  He ordered G. and B. to the basement.  Chamot
    sent B. to the bathroom and locked the door.  He told G. to remove his pants
    and underwear and bend over.  Chamot hit G. 10 to 15 times with computer cables
    mostly on the lower back.  Chamot denied that the incident occurred.  The jury
    convicted on both counts.

Count 10  Assault against G.

[21]

This
    charge arose out of an incident in the spring of 2002.  G. testified that Chamot
    would sometimes say that he or one of his siblings needed a reboot, meaning a
    beating.  On this particular occasion, Chamot made a comment about a reboot
    which frightened G.  G. was running away from Chamot when he ran into his mother. 
    She stopped G. and handed him over to Chamot.  Chamot punched and kicked G.
    several times.  Chamot denied that the incident occurred.  The jury acquitted
    on this count.

Count 11  Assault with a Weapon against G.

[22]

G.
    testified that in the spring of 2002, he was working for Chamot repairing
    computers.  When Chamot inquired about his progress with the computers, G. made
    a sarcastic reply.  Chamot pulled the chair out from under G. and then struck
    him with a computer.  G. blacked out.

[23]

Chamot
    denied the incident.  He described various problems involving G. and his
    mother.  According to Chamot, he tried to mediate those disputes and on one
    occasion determined that G. had been stealing from him.  He required G. to
    recover the stolen property to teach him a lesson.  The jury acquitted on this
    count.

Counts 12 and 16
     Assault with a Weapon and Assault Causing Bodily Harm on B.

[24]

B.
    testified that when he was eight or nine years old, he and his brother were
    taken to the basement by Chamot.  Chamot put B. in the bathroom and proceeded
    to beat G. with computer cables: see counts 8, 9.  He then told B. to come out
    of the bathroom and to remove his pants and underwear.  Chamot struck B. several
    times across the buttocks, legs, back and neck with computer cables.  According
    to B., Chamot beat him for various reasons on many occasions.  The computer
    cables were used on more than one occasion.  Chamot testified that he struck B.
    only once and that he used a piece of a vacuum cleaner.  The jury convicted on both
    counts.

Count 13  Assault on B.

[25]

B.
    testified that when Chamot found out that B. had thrown some sandwiches onto a
    neighbours balcony, he became very angry.  Chamot grabbed B. by the back of
    the neck and kicked him down the stairs to the basement where he proceeded to beat
    him.  Chamot acknowledged that an incident involving sandwiches that were
    thrown onto a neighbours balcony had occurred.  He denied that he struck B. 
    The jury convicted on this count.

Count 14  Assault on B.

[26]

B.
    testified that on one occasion, Chamot became angry with him for doing the
    dishes the wrong way.  He grabbed B. by the head and threw it against an open
    drawer.  Chamot denied that the incident occurred.  The jury acquitted on this
    count.

Count 15  Assault with a Weapon on B.

[27]

B.
    testified that Chamot often beat him with a leather belt if he did not clean
    his room or perform some other chore properly.  B. testified that the beatings
    occurred until Chamots original arrest in 2004.  He could not say how often he
    was beaten.  The jury acquitted on this count.


III



the crown
    appeal

A.

The Ruling

[28]

In
    making her submissions on sentence, Crown counsel accurately described the
    sexual assault charge in count 3 as very general and broad.  She submitted
    that the trial judge should accept B.B.s evidence and find as a fact for the
    purposes of sentencing that the sexual assault described in count 3 included
    the repeated rape of B.B. by Chamot over a lengthy time period.  Crown counsel
    argued that this aggravating factor, combined with others, particularly the position
    of trust held by Chamot, merited a very lengthy penitentiary term.

[29]

Counsel
    for Chamot submitted that the various verdicts returned by the jury suggested
    that the jury had not been satisfied that Chamot had sexual intercourse with
    B.B.  He stressed the acquittals on counts 4 and 5.  Counsel then submitted
    that count 3 was void.  Counsel observed that the count alleged sexual
    assault over a time period during which B.B. was both under and over 14.  Relying
    on
R. v. Sharpe
, 2007 BCCA 191, 219 C.C.C. (3d) 187, he argued that because
    the absence of consent was irrelevant when B.B. was under 14, but an essential
    element of the offence when B.B. was 14 and older, count 3 effectively alleged
    two different offences and should be quashed.  Counsel had not raised any
    objection to count 3 before the jury returned its verdicts.

[30]

In
    her reply submissions, Crown counsel did not take issue with the trial judges
    jurisdiction to consider the propriety of count 3 post-verdict, but argued that
    Chamot had not been prejudiced in any way by the manner in which count 3 was
    framed.

[31]

In
    her reasons for sentence, the trial judge referred to the overwhelming
    evidence of separate incidences of sexual intercourse.  The trial judge then
    made the following finding of fact:

Although the factual paths taken by the jury are unknown, it is
    open to me as the sentencing judge to conclude, as I do, that the evidence
    presented at trial proves beyond a reasonable doubt that Mr. Chamot had sexual
    intercourse with [B.B.].

[32]

The
    trial judge next turned to counsels argument that count 3 was void.  Applying
    the reasoning in
Sharpe
, the trial judge concluded that the jury could
    have split on the requisite elements of the allegation in count 3, some
    convicting on the basis that B.B. did not consent to the sexual activity and
    some convicting on the basis that the sexual activity occurred before B.B. was
    14 when consent was irrelevant.  The trial judge held that the Crown should
    have divided count 3 and separated the time period when B.B. was under 14 from
    the time period when she was over 14.  The trial judge further held that the
    failure to properly divide the count had led to the denial of a unanimous
    verdict.  She concluded that:

because Count 3 covers a period of time where the essential elements
    of the offence are different, the requirement of jury unanimity was
    undermined.  As such the count must be quashed.

[33]

In
    her endorsement on the indictment, the trial judge noted Ct. 3) quashed s.
    581(1).

[34]

The
    trial judge also concluded that count 2 did not encompass the allegations of
    sexual intercourse.  Consequently, having quashed count 3, the trial judge, in
    sentencing Chamot, did not take into account her finding that Chamot had repeatedly
    raped B.B.

B.

Analysis

(i)

The trial judges jurisdiction

[35]

Mr.
    Shandler, for the Crown, correctly observes that the power of a trial judge to
    do anything other than accept a verdict as rendered by a jury is narrowly circumscribed:
    see
R. v. Burke
, 2002 SCC 55, [2002] 2 S.C.R 857, at paras.
54-56;
R. v. Henderson
(2004), 189 C.C.C. (3d) 447 (Ont.
    C.A.), at paras.
29, 46-47; and
R. v. Halcrow
, 2008 ABCA 319, 94
    Alta. L.R. (4th) 1, at para. 24.  I am not aware of any case where a trial
    judge has purported to exercise his or her powers under s. 601 of the
Criminal
    Code
to quash a count for a defect in the pleadings after the jury has
    returned a verdict on that count.

[36]

The
    pleadings provisions in the
Criminal Code
(ss. 581-601)
are designed to ensure that an accused knows
    the charge against him or her and is able to make full answer and defence. The
    ultimate adequacy of the pleadings is tested against those purposes and not by
    whether the pleadings comply with any specific rule such as the single
    transaction rule:  see s. 581(1).

[37]

The
    wide remedial powers in the pleadings-related provisions of the
Criminal
    Code
further demonstrate that criminal allegations are not meant to stand
    or fall based on deficiencies in the pleadings.  Instead, if inadequacies exist,
    they must be corrected in a manner that does not prejudice the right of the
    accused to a fair trial and the allegation must be decided on its merits: see
R.
    v. City of Sault Ste. Marie
, [1978] 2 S.C.R. 1299, at p. 1308.

[38]

The
    functional purposes underlying the criminal pleadings rules and the remedial
    philosophy expressed in those rules argue strongly against the existence of any
    power in a trial judge to consider a pleadings-related complaint post-verdict. 
    Once the verdict is returned, the question of whether the pleadings could compromise
    an accuseds ability to defend himself or herself is no longer pertinent.  The
    remedies provided in the
Code
to correct pleadings deficiencies also have
    no application post-verdict.  After a jury returns a verdict, the question is
    not whether the accused can get a fair trial on the pleadings but whether any deficiencies
    in the pleadings rendered the trial so unfair as to vitiate the verdict.  That
    is a question for an appellate court.  The trial judge had no jurisdiction to
    quash count 3 after the jury returned its verdict on that count.

(ii)

Should
    count 3 be quashed?

[39]

In
    the normal course, a finding that the trial judge acted without jurisdiction
    would resolve the appeal in favour of the Crown.  However, counsel for Chamot argues
    that the quashing of count 3 can be justified on other grounds.  He is entitled
    to make these arguments either in response to the Crowns appeal or as part of
    his own appeal from conviction.

[40]

Counsel
    makes three arguments.  First, he contends that even if the trial judge had no
    jurisdiction to quash count 3, her analysis of
Sharpe
is correct and should
    be adopted by this court in its review of the guilty verdict returned on count
    3.  Second, counsel submits that count 3 offended the single transaction
    requirement in s. 581(1) of the
Criminal Code
and that this court should
    quash the conviction on that basis.  Third, counsel submits that the trial
    judge should have quashed count 3 at the outset of the trial on the basis that
    the charge could not be preferred without the written consent of the Attorney
    General.

(a)

The application of
Sharpe

[41]

In
Sharpe
, the accused was charged with various sexual offences,
    including one count of indecent assault over a timespan encompassing the
    complainants fourteenth birthday.  The trial judge had instructed the jury
    that to convict on the indecent assault charge, it had to first be satisfied
    beyond a reasonable doubt that the alleged acts had occurred.  The trial judge
    next told the jury that if they were satisfied that the acts had occurred, they
    must convict on the count if satisfied that the acts occurred before the
    complainants fourteenth birthday.  On the other hand, he indicated to the jury
    that if they were not satisfied that the acts had occurred before the
    complainants fourteenth birthday, they could still convict if the Crown proved
    beyond a reasonable doubt that the complainant had not consented to the acts.

[42]

The
    British Columbia Court of Appeal held that the two paths to conviction laid
    out by the trial judge meant that different jurors could have convicted having
    found that the Crown had proved different sets of the requisite elements of the
    offence:
Sharpe
,

at para. 19.  The court stated, at paras. 36-37:

[T]he core problem with the count in the case at bar is that
    the jury may have convicted Mr. Sharpe on an offence that contained different
    essential elements.  This was not the result of substantively different
    offences, but because C.M. turned 14 years of age.  This meant that the Crown
    had the additional burden of proving that C.M. did not consent when he turned
    14, which was a legally relevant distinction in the count.  As a result, there
    could have been a split of jury: certain jurors could have convicted the
    appellant on the basis that the indecent acts were performed between 1 January
    1978 and 3 August 1982, when C.M. was 13 years old and consent was no defence;
    others could have had a reasonable doubt that the sexual acts occurred when
    C.M. was 13 years old, but concluded that he did not consent to the acts when
    he was 14 years old.

The simple point
is that
because of the way in which the
    count was framed, this Court is unable to determine whether the jury was
    unanimous with respect to the elements of the offence.
[Emphasis added.]

[43]

There
    is considerable merit to the Crowns submission that, contrary to the analysis
    in
Sharpe
, the essential elements of a sexual assault charge (or an indecent
    assault charge) are the same regardless of the age of the complainant.  On the analysis
    urged by the Crown, the absence of consent is always a constituent element of
    the charge.  However, when the Crown proves that the complainant is under 14
    (under 16 in the present legislation: see s. 150.1), the absence of consent is
    deemed to be established.  On this analysis, proof that the complainant was
    under the age of consent and proof that the complainant in fact did not consent
    are but two different ways to prove the absence of consent.

[44]

I
    need not decide whether the Crowns characterization is correct.  Even on the
    analysis in
Sharpe
, a jurys verdict on a charge that straddles the
    age of consent does not necessarily compromise the unanimity of the jurys
    verdict.  It depends on the evidence, the positions of the parties and the
    specifics of the jury instruction.

[45]

The
    present case is distinguishable from
Sharpe
in one very important
    way.  In this case, the jury was told that before it could convict Chamot on
    count 3, it had to be satisfied that the Crown had proved the absence of
    consent beyond a reasonable doubt.  Unlike the trial judge in
Sharpe
,
    this trial judge did not distinguish between conduct prior to the complainants
    fourteenth birthday and conduct after her fourteenth birthday.  This jury was
    not given two paths to conviction.  On the instruction given to this jury,
    all of the jurors must have been satisfied that B.B. did not consent to the activity
    that formed the basis for the verdict on count 3.  Individual jurors could, of
    course, come to their own conclusion as to acts committed by Chamot: see
R.
    v. S.M.R.
(2004), 189 C.C.C. (3d) 152 (Ont. C.A.), at para. 75, leave to
    appeal to S.C.C. refused, [2010] S.C.C.A. No. 289.

[46]

Not
    only did the trial judges instructions render any potential distinction
    between the pre- and post-aged 14 time periods irrelevant, those instructions
    reflected the position taken by the defence.  Chamot denied all of the alleged
    sexual activity involving B.B.  There was no suggestion of any possibility that
    if the acts occurred, they were consensual.  In pre-charge submissions, counsel
    for Chamot made it clear that consent was not an issue.

[47]

Having
    regard to the evidence, counsels position, and the trial judges instructions,
    there is no reason to doubt the unanimity of the jurys verdict on count 3. 
    They were clearly satisfied beyond a reasonable doubt that Chamot engaged in
    non-consensual sexual activity with B.B. at some time during the time period
    covered by count 3.

(b)

The single
    transaction argument

[48]

A
    count in an indictment must 
in general
apply to a single transaction:
Criminal Code
,
s.
    581(1) (emphasis added).  A count that does not comply with s. 581(1) is not
    necessarily bad in law: see
R. v. Katigbak
, 2011 SCC 48, [2011] 3
    S.C.R. 326, at para. 82.  A trial court may, however, quash, amend or divide a
    count if the accused is prejudiced by the way the count is framed: see
Criminal
    Code
,
ss. 590(2), 601. 
    This court has the same powers on appeal even if no objection was taken to the
    count at trial: see
R. v. Rafael
,
[1972] 3 O.R. 238 (C.A.), at p.  240;
R. v. Sandu
, 2009 ONCA 102, 242
    C.C.C. (3d) 262, at para. 25.

[49]

This
    court has repeatedly indicated, often in reference to allegations of sexual
    abuse that span a wide timeframe and several discrete incidents, that a single
    transaction can encompass several different acts: see e.g.,
R. v. Selles
(1997), 34 O.R. (3d) 332 (C.A.), at p. 339.  Count 3 alleged a series of acts
    all of which involved the same complainant and formed part of an ongoing course
    of conduct within the same family dynamic.  Count 3 amounted to an allegation
    of ongoing, systematic sexual abuse of B.B.  That conduct, as alleged, described
    an ongoing single transaction: see
R. v. Hulan
,
[1969] 2 O.R. 283 (C.A.), at p. 290.

[50]

In
    holding that count 3 does not offend the single transaction rule, I do not mean
    to suggest that a trial judge could not exercise his or her discretion to divide
    or amend the count.  The issue does not arise here, as the trial judge was not
    asked to amend or divide count 3.

(c)

Was the indictment properly preferred?

[51]

As
    indicated above, Chamot was originally charged with sexually assaulting B.B. over
    a time period that ended in 2004.  He was discharged at the preliminary inquiry
    after B.B. recanted her evidence.  New charges were laid, however, after B.B
    came forward with further allegations in 2009.  At the second preliminary
    inquiry, the sexual assault allegation in the information alleged assaults that
    occurred beginning in 2004, after Chamot had been discharged at the first
    preliminary inquiry and returned to live with Ms. A.B. and her family.  At the
    end of the second preliminary inquiry, the Crown argued that the evidence
    supported Chamots committal for trial on a charge of sexual assault spanning
    the entire period from 2001 to 2007.  The preliminary inquiry judge agreed and
    committed the appellant on a charge of sexual assault covering the six-year period. 
    Relying on that committal, the Crown preferred an indictment containing count 3
    alleging sexual assault between 2001 and 2007.

[52]

At
    the commencement of the trial, counsel for Chamot moved to quash count 3.  He
    argued that because Chamot had been discharged on a count alleging sexual
    assault up to 2004, the Crown could only indict Chamot on a charge referable to
    that time period with the written consent of the Attorney General.  Counsel
    relied on s. 577 of the
Criminal Code
, which requires the Attorney General
    personally consent in writing to the preferring of an indictment when a
    preliminary inquiry has been held and the accused has been discharged.  The
    Attorney General did not consent in writing to the preferral of this
    indictment.

[53]

The
    trial judge rejected this argument and relied instead on the power to prefer
    indictments found in s. 574 of the
Criminal Code
.  Section 574(1)(a)
    declares that the prosecutor may prefer an indictment on any charge on which
    that person was ordered to stand trial.  Chamot was ordered to stand trial on
    an allegation of sexual assault covering the entire time period.  That
    committal was not challenged.  It provided a clear basis under s. 574(1)(a) for
    the preferral of an indictment without the personal consent of the Attorney
    General.

[54]

I
    agree with the trial judge.  Section 577 does not speak to indictments which
    find their authority in a prior committal for trial on the same count as is
    contained in the indictment.  Rather, s. 577 speaks to cases where no
    preliminary inquiry has been held or an accused has been discharged.

[55]

Chamot
    relies on
R. v. Tapaquon
, [1993] 4 S.C.R. 535, for the proposition
    that he could not be indicted on count 3 without the Attorney Generals written
    consent.  In
Tapaquon
, the accused had been discharged on the offence
    at the preliminary inquiry and committed for trial on a lesser offence.  The
    Crown purported to prefer an indictment on the charge for which the accused had
    been discharged.  This factual difference distinguishes
Tapaquon
from
    this case.  Here, as noted above, Chamot was committed for trial on the sexual
    assault charge alleged in count 3 of the indictment.  The validity of that
    committal is not affected by the earlier discharge on an allegation
    encompassing part of the same timeframe.

[56]

Tapaquon
is also distinguishable based on a subsequent
    amendment to the statutory provision in issue in
Tapaquon
.  When
Tapaquon
was decided, s. 577 of the
Criminal
    Code
appeared to preclude the laying of the same charge in a new
    information after an accused had been discharged at a preliminary inquiry, at
    least in cases where the accused was to be tried by a jury.  That language has
    been removed from s. 577.  The present wording does not bar the laying of a
    second information after an accused is discharged at a preliminary inquiry. 
    If, as occurred here, the accused is committed for trial at the second
    preliminary inquiry, s. 577 does not apply and the written consent to the
    preferral of the indictment by the Attorney General is not needed.  Count 3 was
    properly preferred.

C.

Conclusion on the Crowns Appeal

[57]

I
    would allow the Crowns appeal, and set aside the order quashing count 3 of the
    indictment.  The nature of any further order depends on the resolution of
    Chamots appeal.  I now turn to that appeal.


IV



chamots
    appeal

[58]

Chamot
    raises several grounds on his appeal from conviction.  As I am satisfied that
    the trial judge fell into reversible error in failing to give an instruction
    limiting the use the jury could make of evidence of Chamots bad character, I
    need not consider the other grounds on which the convictions are challenged.  I
    will, however, address one argument made by counsel for Chamot in respect of
    the trial judges fact-finding power on sentencing.

A.
the
    limiting instruction on the use of the bad character

evidence

[59]

The
    jury heard a great deal of evidence that placed Chamot in a very bad light.  On
    the testimony of the complainants and Ms. A.B., Chamot was a cruel and brutal
    person who terrorized three young children virtually from the time they arrived
    in Canada.  Not only did he physically abuse the boys and sexually and
    physically abuse B.B., he psychologically abused the children, especially B. 
    According to the evidence, Chamot constantly berated and belittled B. in front
    of other people.  If the abuse was not enough, there was also evidence that
    Chamot used the children as very cheap labour to further his own financial
    ends.

[60]

Evidence
    of Chamots constant mistreatment of the children over several years had to be
    heard by the jury.  Some of it related to the
actus reus
of the
    various charges in the indictment.  Apart entirely from evidence going directly
    to a particular charge, much of this evidence was potentially admissible so
    that the jury could assess the credibility and reliability of the childrens
    evidence.  To properly evaluate that evidence, the jury had to have a sense of
    the world in which the children alleged they lived during the relevant events. 
    On their evidence, Chamots violent and cruel conduct toward them was a central
    feature of that world.

[61]

While
    the search for the truth demanded that the jury hear evidence that put Chamot
    in a very bad light, that search equally demanded that the jury understand the
    purposes for which it could not use that evidence in its deliberations.  No
    such limiting instruction was given.

[62]

The
    jurisprudence is clear that when there is a real risk that evidence properly
    admitted for one purpose could be used by the jury for an improper purpose, the
    trial judge must caution against that misuse of the evidence: see e.g.,
R.
    v. Corbett
, [1988] 1 S.C.R. 670, at p. 691.  The risk of misuse of
    evidence is particularly high in cases like this one where the Crown alleges morally
    reprehensible conduct in the context of the long-term abuse of one or more
    children within a household.  When a jury hears the kind of evidence this jury
    heard, the trial judge must make it clear that the jury cannot use the evidence
    to infer that the accused is a bad person worthy of punishment regardless of
    his or her culpability on the specific allegations.  The trial judge must also tell
    the jury that it cannot infer from that evidence that because the accused is
    the kind of person likely to abuse children, he or she is therefore guilty of
    the specific allegations.

[63]

The
    jurisprudence requiring a proper limiting instruction is loud and clear.  For
    example, in
R. v. B. (F.F.)
, [1993] 1 S.C.R. 697, the charges alleged
    that the accused had assaulted his niece over a number of years.  Other
    children in the family came forward to give evidence of the physical abuse and
    brutality within the home.  After explaining that the evidence of the accuseds
    mistreatment of the other children was admissible to show the condition and
    atmosphere within the home and to explain the absence of any complaints, the
    court held that the trial judge should have been given a proper limiting
    instruction.  Iacobucci J. for the majority held at p. 734:

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 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 appellants
    bad character that the appellant was guilty because he is the sort of person
    who is likely to commit the offences in question.
[Emphasis added.]

This court has repeatedly applied the ratio from
B.
    (F.F.)
in cases like this one when properly admitted evidence inevitably blackened
    the character of the accused: see e.g.
R. v. M. (B.)
(1998), 42 O.R.
    (3d) 1 (C.A.), at pp. 9-10, 14;
R. v. J.A.T.
, 2012 ONCA 177, 290
    O.A.C. 130, at paras. 55, 67.

[64]

Mr.
    Shandler acknowledged that this trial judge did not give a limiting instruction
    like that described in
B. (F.F.)
.
He did refer to two passages from the jury charge that he submitted conveyed to
    the jury the essential message that propensity reasoning from Chamots bad
    character to a finding of guilt was not permitted.

[65]

The
    first passage appears in the instruction about the use that the jury could make
    of a witnesss criminal record.  Chamot had testified.  The trial judge said:

It is very important that you understand that you must not use
    the fact, number or nature of the prior convictions to decide or help you
    decide that Andrew Chamot is the sort of the person who would commit the
    offences charged.

[66]

This
    instruction was correct and necessary.  Chamot did have a criminal record
    involving an assault on B.  However, the instruction targeted the criminal
    record and left untouched the use that the jury could make of all of the
    evidence about Chamots mistreatment of the children which had not resulted in
    any criminal convictions.

[67]

The
    second passage in the instructions relied on by the Crown was given during the trial
    judges similar fact evidence instruction.  The trial judge had ruled that the
    evidence given by each child on the charges involving the alleged beatings with
    the computer cables was admissible on the other counts involving the alleged
    beatings with the computer cables (counts 6, 8, 9, 12 and 16).  In the course
    of explaining to the jury the limits on the use of similar fact evidence, the
    trial judge said:

If you find nothing more than that Andrew Chamot is a bad
    person or of bad character or the sort of person who would commit this type of
    offence, each complainants evidence must be considered separately without
    reference to the evidence of the others.  Under our system, it is not an
    offence to be a bad person or to have a bad character.

[68]

There
    are two problems with this instruction.  First, by its terms, it does not speak
    to the use of evidence of bad character on those counts not included as similar
    fact evidence counts.  Those counts included the sexual assault allegation in count
    3 and three other charges on which the jury convicted Chamot.

[69]

Second,
    the instruction can be read as indicating that evidence of bad character did
    have evidentiary value, although it did not permit the use of evidence relating
    to one count on other counts.  As I read the instruction, it limits only the
    use of evidence of bad character as similar fact evidence.  It does not limit
    the use of the evidence apart from its use as similar fact evidence.

[70]

The
    trial judges instructions set out above in para. 67 appear to be taken from
    this courts judgment in
R. v. Thomas
(2004), 72 O.R. (3d) 401 (C.A.). 
    In
Thomas
, Rosenberg J.A. outlined, at para. 54, a series of
    suggestions as to the content of a similar fact instruction.  One of the suggestions
    began with language almost identical to that used by the trial judge.  Unfortunately,
    the trial judge did not refer to the entirety of the suggested instruction. 
    Immediately after the passage referred to by the trial judge, Rosenberg J.A.
    added:

[N]o one may be convicted or punished for simply being a bad
    person or having a bad character.  It is not permitted in our system to reason that
    because a person is of bad character or the sort of person who commits sexual
    offences he must be guilty of the offences charged.

[71]

The
    language from
Thomas
omitted by the trial judge in her instructions speaks
    directly to and interdicts the impermissible use of the evidence of Chamots bad
    character.  I think that kind of limiting instruction was necessary in this
    case.

[72]

Crown
    counsel, in support of his contention that the instruction was adequate, points
    to the absence of any objection by counsel for Chamot and the different
    verdicts arrived at by the jury.  He contends that the absence of an objection
    indicates that counsel was satisfied that the jury understood the limited use
    of the evidence and that the different verdicts (eight acquittals and eight
    convictions) are inconsistent with the kind of broad brush assessment that
    would inevitably flow from the jurys misuse of the bad character evidence.  Both
    arguments have some force.  However, in the end, they do not convince me that
    the charge was adequate.

[73]

First,
    counsels failure to object can be a very important consideration when
    assessing the effect of a non-direction: see e.g.,
R. v. J.S.
,
2010 ONCA 606, at para. 7.  For
    example, in cases where the potential misuse of the evidence is debatable, counsels
    failure to object at trial may well influence the appellate court.  However, in
    this case, the quantity and quality of the bad character evidence suggests a
    very significant risk that the jury could misuse that evidence absent a proper
    limiting instruction.  Certainly, there could be no tactical reason for
    counsels failure to object.   The absence of an objection in these
    circumstances does not cause me to conclude that the non-direction was not
    significant.

[74]

Second,
    while I can accept that the jurys different verdicts are consistent with a
    careful count by count assessment of the evidence, I cannot read as much into
    those different verdicts as does the Crown.  It does not follow that because
    the jury made a careful count by count assessment of the complainants credibility
    that it did not misuse the evidence of Chamots bad character.  The jury could
    have done both and in doing so arrived at different verdicts on different
    counts.  Ultimately, the different verdicts do not cause me to conclude that
    despite the absence of an adequate limiting instruction, the jury got the
    proper message.

[75]

I
    am satisfied that the failure to give a proper limiting instruction with
    respect to the evidence of Chamots mistreatment of the children constitutes an
    error in law that requires the quashing of all convictions, including the
    sexual assault conviction, and the ordering of a new trial.

B.

The Trial Judges Fact Finding on Count 3

[76]

As
    I would order a new trial on the counts on which Chamot was convicted, including
    the sexual assault charge, it is unnecessary to address the arguments concerning
    the trial judges fact-finding role on sentence.  There is, however, one aspect
    of that part of the appeal which I think should be addressed.

[77]

In
    speaking to sentence, Crown counsel argued that the sexual activity alleged in count
    3 included the repeated rape of B.B. over several years.  While counsel agreed
    that the jurys verdict did not necessarily indicate that the jury had found
    Chamot raped B.B., she argued that the verdict on count 3, considered in the context
    of the other verdicts, did not preclude the trial judge from making the finding
    on sentencing that Chamot had repeatedly raped B.B.  Crown counsel submitted
    that the trial judge should make that finding for the purpose of determining
    the appropriate sentence.  As outlined above, although the trial judge did make
    the finding sought by the Crown, she quashed count 3 and, therefore, did not
    sentence Chamot on that charge.

[78]

Mr.
    Harris, counsel for Chamot, accepted that count 3 as framed included allegations
    of sexual misconduct ranging from improper touching to forced intercourse.  He
    also accepted that fact finding for the purpose of sentencing is a matter for
    the trial judge, and that in exercising that power in jury cases, the trial
    judge must operate within the parameters established by s. 724(2) of the
Criminal
    Code
.  Section 724(2)(a) requires the judge to accept as proven all facts,
    express or implied, that are essential to the jurys verdict.  Section
    724(2)(b) allows the judge to make any additional relevant findings disclosed
    by the evidence heard at trial or presented on sentencing.

[79]

Mr. Harris submits that the trial judges fact-finding
    powers granted by s. 724 must be read in light of an accuseds constitutional
    right to trial by jury under s. 11(f) of the
Canadian Charter of Rights and
    Freedoms
.  He contends that allowing a
    trial judge to make a finding that the assault involved rape as opposed to some
    other form of sexual assault subverts an accuseds right to have his or her
    guilt determined by a jury.  As I understand this submission, the distinction
    between forced sexual intercourse and other forms of sexual assault is so
    significant in fixing the appropriate penalty that it should be regarded as
    going to culpability and not merely as an aggravating factor on sentence.  Matters
    of culpability are said to be for the jury.

[80]

I cannot accept this submission.  First, by
    suggesting that a distinction between forced sexual intercourse and other forms
    of sexual assault is relevant to culpability, counsel is seeking to
reintroduce,
    by way of judicial interpretation of the constitutional right to trial by jury,
    the long-discarded distinction between the crime of rape and other forms of
    sexual assault.  Under the present legislation, the distinction between rape
    and other forms of sexual assault no more goes to culpability than would the
    distinction between various weapons on a charge of assault with a weapon. 
    Those distinctions are important, but they are relevant to sentencing, not to
    culpability.

[81]

Second,
    an accuseds right to trial by jury is not compromised when the trial judge
    makes a finding as to the nature of the assault involved in the allegation. 
    Chamots reliance on
R. v. Finta
(1992), 73 C.C.C. (3d) 65, at p. 174
    (Ont. C.A.), affd [1994] 1 S.C.R. 701, is misplaced.
Finta
stands
    for the proposition that factual issues central to a jurys determination of
    guilt must be made by the jury if an accused elects trial by jury.  On count 3
    as it went to the jury, a determination by the jury as to whether Chamot raped
    B.B. was in no way essential to the jurys verdict.

[82]

In
    my view, having regard to the charge as framed and the jurys verdicts on all
    of the counts, it was open to a trial judge to find for the purpose of
    sentencing on count 3 that Chamot had repeatedly sexually assaulted B.B.  That
    finding could only be made if the trial judge was satisfied beyond a reasonable
    doubt that Chamot had engaged in repeated sexual intercourse with B.B.: see
Criminal
    Code
,
s. 724(3)(e).


V



CONCLUSION

[83]

I
    would allow the Crowns appeal and set aside the order quashing count 3.  I
    would allow Chamots appeal and quash the convictions returned by the jury.  I
    would order a new trial on counts 2, 3, 7, 8, 9, 12, 13 and 16.  The acquittals
    stand.

RELEASED:

DEC 21 2012

DD

Doherty J.A.

I agree H.S. LaForme J.A.

I agree C. Stephen Glithero


