



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any
    of the following offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, 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); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. W.D., 2019 ONCA 120

DATE: 20190220

DOCKET: C60818

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.D.

Appellant

Nader R. Hasan, for the
    appellant under a limited order under s. 684 of the
Criminal Code

W.D., appearing in person

Holly Loubert, for the respondent

Heard: January 17, 2019

On appeal from the conviction entered by Justice Kelly A.
    Gorman of the Superior Court of Justice, sitting with a jury, on March 9, 2015,
    and the sentence imposed on July 3, 2015.

REASONS FOR DECISION

[1]

Following a jury trial, the appellant was convicted of sexual assault
    and sexual assault with a weapon, but acquitted of three counts of uttering
    threats and one count of assault. All charges involved the same complainant,
    the appellants former common law spouse. The appellant was sentenced to a
    total of 22 months less one day of imprisonment plus two years probation. He
    appeals against the convictions and seeks leave to appeal sentence.

[2]

The appellant was self-represented at trial. Through counsel appointed
    under s. 684 of the
Criminal Code
,
RSC
    1985, c C-46,
he raises two issues on his conviction appeal. In
    addition, he advances one issue on his own behalf.

[3]

The two issues raised by counsel are the following:

i)

particularly because of the multi-count indictment, the evidence of
    extrinsic discreditable conduct introduced at trial and the trial Crowns
    references to the extrinsic discreditable conduct in her closing address,  the
    trial judge erred by failing to direct the jury not to apply the evidence
    across counts and by failing to provide a specific caution against the dangers
    of propensity reasoning; and

ii)

the trial judge erred by failing to provide the jury with meaningful
    guidance about assessing credibility.

[4]

We allow the conviction appeal based on the second issue raised by
    counsel. Before turning to that issue, we briefly explain why we would not give
    effect to the first issue raised by counsel. In light of our conclusion on the
    second issue, it is unnecessary that we deal with the additional issue raised
    by the appellant on the sentence appeal.

(1)

Did the Trial Judge did err in her instructions regarding use of
    evidence across counts or in failing to caution the jury specifically against
    propensity reasoning?

[5]

Concerning the first issue, we do not accept counsels submissions.
    Although this case involved a multi-count indictment, the charges related to a
    single complainant, the appellant's former common law spouse. Given the nature
    of the evidence led at trial, an instruction prohibiting entirely the use of
    evidence across counts would not have been appropriate. For example, some of
    the evidence on the nature of the parties relationship was potentially
    probative of animus or motive and was admissible across counts. Accordingly, in
    this case, the following instruction given by the trial judge concerning the
    use of evidence across counts was adequate:

there are six alleged offences. Each allegation is a separate
    charge. You must make a separate decision and give a separate verdict for each
    of the six charges.
You must make your decision on each charge only on the
    basis of evidence that relates to that charge
.

Now, [the appellant] is
    presumed innocent on each of those six charges. You must consider each charge
    separately and return a separate verdict, as I said based only on the evidence
    and the legal principles that I will tell you about
. Your verdicts on each
    charge, so each of the six, they may be the same on each of the six, or for
    example you may find [the appellant] not guilty on each of the six counts. You
    may have [sic] find him guilty on one of the six counts, and so on [Emphasis
    added.]

[6]

The absence of an instruction cautioning against misuse of discreditable
    conduct evidence is not fatal either. Much of the evidence of extrinsic
    discreditable conduct was led by the appellant himself in support of his theory
    that the complainant had bipolar disorder, was inadequately medicated, and, as
    a result, was an unreliable historian who blew minor events out of all
    proportion. Overall, the discreditable conduct evidence (meaning both the
    evidence relating to the counts of which the appellant was acquitted and the
    evidence of extrinsic discreditable conduct) related to relatively minor misconduct
    as compared to the more serious sexual assault allegations for which the
    appellant was convicted. As we have said, the jury acquitted the appellant of
    four of the six charges he faced. Further, as we read the Crowns closing
    address, she did not invite any misuse of the discreditable conduct evidence
    but rather restricted her submissions to asking the jury to draw adverse
    inferences about the appellants credibility. Given all these circumstances, we
    are not persuaded that the jury was misled into improper propensity reasoning
    in this case or that the failure to give a discreditable conduct caution
    constituted reversible error.

(2)

Did the trial judge err by failing to provide the jury with meaningful
    guidance about assessing credibility?

[7]

We conclude that the trial judge committed reversible error by failing
    to give the jury more complete instructions about assessing credibility and
    prior inconsistent statements.

[8]

In this regard, we note certain frailties in the complainants evidence
    that were not properly addressed. For example, the complainant agreed during
    cross-examination that she made a false statement in an affidavit she swore for
    use in a family law proceeding when she said the appellant got along well with
    her children. More importantly, there was evidence before the jury that, during
    her initial police interview, the complainant advised the police that she had
    not been sexually abused.

[9]

In particular, evidence was led that, during her initial police interview
    on November 8, 2013, not only did the complainant not mention her sexual
    assault allegations but she responded in the negative to an inquiry put by an
    officer completing a standard questionnaire concerning whether the appellant
    had ever sexually abused her. Evidence was also led that on December 9, 2013,
    after the appellant had served her with a family law motion, the complainant
    returned to the police station, responded positively to the same questionnaire
    inquiry, and made the sexual assault allegations that led to the charges
    forming the subject matter of this appeal.

[10]

Despite
    these issues concerning the complainant's credibility, the trial judge did not
    give the standard general instructions set out in specimen jury charges about
    assessing credibility. The instructions would have focused the jurys attention
    on potential credibility issues  such as prior inconsistent statements or false
    statements made under oath.

[11]

The
    only general instruction the trial judge gave about assessing credibility was to
    tell the jury to use their common sense:

Now when you go to your jury room
    to consider the case
use the same common sense that you use in everyday life
    in deciding whether people know what they are talking about and whether they
    are telling the truth
. There is no magic formula for deciding how much or
    how little you believe of the witness testimony or how much to rely on it in
    deciding this case, use your common sense. [Emphasis added.]

[12]

This
    instruction essentially mirrors one paragraph of the assessment of evidence
    instruction set out in David Watt,
Watts Manual of Criminal Jury
    Instructions,
2nd ed. (Toronto: Carswell, 2015), at p. 267.  It did not
    include any of the further instructions generally given that are designed to
    focus the jurys attention on particular problems with the evidence in the
    case.  For example, the following questions set out in the assessment of
    evidence instruction in
Watts Manual
, at pp. 267-68, would have been
    particularly relevant in this case:

Did the witness seem honest? Is there any reason why the
    witness would not be telling the truth?...

Did the witnesss testimony seem reasonable and consistent as
    s/he gave it?  Did the witness say or do something different on an earlier
    occasion?

Do any inconsistencies in the
    witnesss evidence make the main points of the testimony more or less
    believable and reliable? Is the inconsistency about something important, or a
    minor detail? Does it seem like an honest mistake? Is it a deliberate lie? A
    deliberate lie is always serious and may taint all the witness evidence. Is
    the inconsistency because the witness said something different, or because s/he
    failed to mention something? Is there any explanation for it? Does the
    explanation make sense?

[13]

The
    trial judge gave no general instructions addressing the significance of a false
    statement made under oath or prior inconsistent statements. She mentioned the
    complainants evidence acknowledging that the complainant had sworn an
    affidavit containing a false statement only when setting out the appellants
    theory of the case:

Further, [the appellant] reminds
    you that [the complainant], on a previous occasion, swore a false affidavit in
    regards to a
Family Law Act
matter and should be treated as an
    incredible witness.

[14]

The
    trial judge addressed the evolving nature of the complainants allegations
    solely through the lens of the appellants argument that the complainant had a
    motive to fabricate. The trial judge did so initially when addressing the issue
    of motive and explaining that the appellant alleged the complainant had a
    motive to fabricate. As part of this instruction, the trial judge explained
    that on December 9, the complainant made a more fulsome allegation of a number
    of incidents that she alleges has occurred. The trial judge said:

But in assessing whether there was
    a motive to fabricate, I would ask you to consider those items together with
    the fact that
she first went to the police on November 8
th
, 2013
    and she made a complaint of a couple of incidents
, and you will have the
    report there. And then the evidence was that she became aware by November 18
th
that [the appellant] initiated some Family Law proceedings in relation to [the
    couples son],
and then December 9 she goes back to the police and makes a
    more fulsome allegation of a number of incidents
that she alleges occurred.
    [Emphasis added.]

[15]

Subsequently,
    when addressing the appellants theory of the case, the trial judge noted that
    the complainant made an expanded complainant on December 9:

[The appellant] also wants to
    remind you that
November 8
th
when [the complainant] went to the
    police she told the police a very abbreviated version of the allegations
which she testified to before you, that she became aware of the Family Law
    proceedingsNovember 18, 2013, and then
went to the police a further time on
    December 9 and reported an expanded complaint
which results in the
    Indictment before this court.

[16]

These
    instructions describe an evolving complaint. What they fail to do is put front
    and centre before the jury the fact that there was evidence before them that,
    in her initial interview with the police, the complainant not only failed to
    mention the sexual assault allegations, but denied any sexual abuse by the
    complainant.

[17]

In
    failing to mention the evidence of the complainants prior inconsistent
    statement and in failing to equip the jury with the tools to assess that
    evidence, either by way of general instructions on assessing the evidence or by
    general instructions on prior inconsistent statements, the trial judge
    committed reversible error. The inconsistency in the complainants reporting
    went to the heart of the complainants allegations of sexual assault.

[18]

While
    this inconsistency in reporting may have been a secondary aspect of the
    appellants position, nonetheless, he put the inconsistency in reporting to the
    complainant as part of his cross-examination. During cross-examination, the
    appellant suggested to the complainant that, in her initial interview with the
    police on November 8, 2013, she responded no to a question by the interviewing
    officer about whether the appellant had ever sexually abused her. The
    complainant denied the suggestion. She explained that she was very upset the
    first time she went to the police station. She said, If I answered no, I
    probably thought he asked another question.

[19]

Although
    the appellant failed to have the interviewing officer read into the record the
    question and answer that gave rise to the inconsistency, the inconsistent
    question and answer formed part of the record and should have been drawn to the
    jurys attention
[1]
. 
    Particularly as a self-represented litigant, the appellant was entitled to have
    his position put fully and fairly before the jury.

[20]

We
    acknowledge that the complainant did not recall making the inconsistent statement
    and said if she did, she must have misunderstood the question. However, the
    interviewing officer testified he went over the questionnaire inquiries
    carefully with the complainant and had her initial each page of the November 8
    handwritten version of the questionnaire. It was up to the jury to decide
    whether the complainant made the inconsistent statement and if she did, what,
    if any, impact that should have on her credibility. However, the jury was not
    equipped with the proper tools to address these issues.

[21]

In
    oral submissions on the appeal, the Crown argued that if we accepted the
    appellants submission on this ground, we should rely on the proviso in s. 686(1)(b)(iii)
    of the
Criminal Code
to dismiss the appeal. We reject that submission.
    As we have said, the failure to instruct the jury concerning the evidence of a
    prior inconsistent statement by the complainant went to the heart of the
    complainants allegations of sexual assault. As such, the non-direction was not
    a minor error  it related to the core of the allegations of which the
    appellant was convicted. Further, the Crowns case on the sexual assault
    charges was not overwhelming. It depended solely on the testimony of the
    complainant, which was disputed by the testimony of the appellant.

Disposition

[22]

Based
    on the foregoing reasons, the appeal is allowed, the convictions are set aside
    and a new trial is ordered on the sexual assault and sexual assault with a
    weapon charges.

Janet
    Simmons J.A.

P.
    Lauwers J.A.

G.T.
    Trotter J.A.





[1]

In examination-in-chief by the Crown, the police officer who
    interviewed the complainant testified that he filled out a Domestic Violence
    Supplementary Report (DVSR) with her both on November 8, 2013 and on December
    9, 2013. He explained that initially he completed each DVSR in his handwriting
    and later input the information into a computer to produce a typed report. He
    confirmed it was his practice to fill out DVSRs in handwriting with a
    complainant, have her review it, make any necessary changes, and then sign it.
    He produced the handwritten DVSRs he filled out with the complainant on
    November 8, 2013 and December 9, 2013 as well as the typed reports he generated
    for both dates. He testified that the complainant signed each page of the
    November 8, 2013 handwritten DVSR but not the December 9, 2013 handwritten
    DVSR. In cross-examination by the appellant, the interviewing officer confirmed
    he always ensured complainants understood the questions in the DVSRs and had an
    opportunity to think about their answers. The appellant did not ask the police
    officer to read into the record the question and answer from the November 8,
    2013 DVSR in which the complainant denied sexual abuse by the appellant.
    However, at the appellants request, the typed DVSRs were entered as exhibits.
    During examination-in-chief, the Crown had clarified one transposition error as
    between the handwritten and typed versions of the November 8, 2013 DVSRs (the
    age of the child accompanying her was misstated as two instead of three). The Crown
    did not object to the typed versions of the DVSRs being entered as exhibits.  As
    we have said, the interviewing officer testified that the complainant signed
    each page of the handwritten November 8, 2013 DVSR. In our view, the questions
    asked and answers recorded on the November 8, 2013 DVSR thus became part of the
    record for the purpose of demonstrating any prior inconsistent statement.


