



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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. F.T., 2015 ONCA 904

DATE:  20151221

DOCKET: C57846

Strathy C.J.O., Lauwers J.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

F.T.

Appellant

Timothy Breen, for the appellant

Melissa Adams, for the respondent

Heard: October 1, 2015

On appeal from the conviction entered on June 6, 2013 by
    Justice J.S. ONeil of the Superior Court of Justice, sitting with a jury.

Speyer J. (
ad hoc
):

[1]

The appellant is the
    father of four children. Two of his daughters, C.B. and R.G., allege that for
    many years they were sexually abused by their father. A jury found the
    appellant guilty of multiple sexual offences in respect to each of the two
    complainants. Additionally, the appellant was convicted of assaulting C.B.,
    causing her bodily harm.

A.

OVERVIEW

[2]

This is a case about
    allegations of historical physical and sexual abuse. A common theme in the
    evidence of each complainant is that the abuse occurred within a family home
    that featured an atmosphere of stern discipline and corporal punishment for
    misbehaviour. While the evidence of each complainant overlapped in certain
    respects, Crown counsel did not seek a similar act evidence ruling that would
    have permitted the allegations of one complainant to support or confirm the
    allegations of the other. The trial judges instructions to the jury proceeded
    on the footing of a single accused, charged with multiple offences, which
    required the jury to decide the case based solely on the evidence applicable to
    each count.

[3]

The appellant testified
    that the allegations of abuse were untrue. In support of the defence position,
    the appellants wife and two of the appellants other adult children gave evidence
    refuting specific details of C.B.s and R.G.s testimony. In a nutshell, and not
    untypical of so many sexual abuse cases, credibility was the central issue at
    this trial.

[4]

As the evidence evolved,
    this case posed a particular set of challenges for both counsel and the trial
    judge. I make the following two initial observations. First, the record of this
    trial is overburdened by evidence of the appellants bad character: specifically,
    evidence of the appellants violent behavior in instances unrelated to any
    charge on the indictment. That said, it is important to note that the extrinsic
    evidence of the appellants discreditable conduct was admitted without
    objection by the appellants trial counsel. Indeed, counsel consented to the
    admission of the evidence for strategic purposes. The trial judge was both
    alive to and concerned about the potential prejudicial effect of the bad
    character evidence. He promised to provide a proper limiting instruction. Unfortunately,
    the instruction provided was inadequate.

[5]

Second, absent a
    similar act ruling, especially on the particular facts of this case, it was of
    crucial importance that the jury be cautioned that the acceptance of one
    complainants evidence could not be used to bootstrap, bolster or confirm the
    evidence of another complainant.

[6]

The reasons that follow
    explain why a new trial is required. I will outline the facts only to the extent
    necessary to shed light on two issues that have merit.

B.

THE
    DISCREDITABLE CONDUCT ISSUE

(i)

THE NATURE OF THE ALLEGATIONS

[7]

In 2010, R.G. was 29
    years of age when she complained to the police that, between the years 1988 and
    2004, she was sexually abused by her father. The nature of R.G.s complaint ran
    the gamut from sexual touching in the early stages of the abuse and escalated
    over time to continuous acts of fellatio and sexual intercourse. The alleged
    abuse started when R.G. was 5 or 6 years old and stopped when she was 13. It stopped
    when R.G., in grade nine at the time, told her parents that she had been
    sexually intimate with her boyfriend. The appellants reaction to this news was
    to verbally disparage his daughter in the most derogatory manner. Thereafter,
    until she left home at the age of 16, there were no further instances of sexual
    misconduct.

[8]

C.B. is two years older
    than R.G. The allegations of C.B.s sexual abuse are similar in nature to those
    of her sister. They span a thirteen year period, from the time C.B. was in
    elementary school and living at home to occasions outside the family residence
    when C.B. was at university.


(ii)

THE ASSAULT CAUSING BODILY HARM CHARGE

[9]

This charge, the fifth
    count on the ten count indictment, relates to three different occasions of
    alleged physical abuse of C.B. over a one year period from May 1992 to May
    1993. These incidents involved injuries that required hospital treatment. C.B.s
    was treated for a broken wrist, an injured ankle and a fractured collar bone
    respectively. While the hospital records indicate the complainant reported
    innocent explanations for her injuries on each occasion, C.B.s trial evidence
    was that each of the injuries was the result of her fathers physical abuse: on
    two occasions she fell and injured herself after being pushed by her father,
    and on the third, the injury resulted from being struck by the appellant with
    the handle of a broom.

[10]

The
    appellant denied causing the injuries suffered by C.B. His evidence was
    supported by his wife and, in particular, by the testimony of the appellants
    daughter (the complainants sister) A.T. A.T. testified she caused C.B.s wrist
    fracture when she landed on C.B.s wrist while jumping on the bed. A.T. also
    testified she saw C.B. injure her ankle when jumping down a flight of stairs in
    the family home. The sharp conflict in the evidence was a matter for the jurys
    determination.

(iii)

THE EVIDENCE OF THE APPELLANTS ASSAULTIVE BEHAVIOR NOT COVERED BY THE
    INDICTMENT

[11]

The
    appellant was not charged with assaulting R.G. Nevertheless, evidence of the
    appellants violent behaviour played a featured role in respect to this
    complainants evidence. In the context of testifying that the appellant was a
    strict disciplinarian, R.G.s evidence was that she and her siblings were
    continuously assaulted by the appellant using his belt to strap their bare
    buttocks. Moreover, beyond the use of the belt, R.G. testified that she was
    disciplined by slaps to the face and pushing with sufficient force that she would
    fall to the floor. This complainant testified that the pushing episodes
    occurred on more than 50 occasions. Indeed, the complainant recounted a time
    when she was pushed down the stairs of her home and taken to the hospital for
    X-Rays.

[12]

During
    examination-in-chief of R.G., the trial judge expressed his concerns about the
    breadth of the evidence as to the appellants violent behavior that was not set
    out in any count in the indictment:

THE COURT:  Take a look, defence counsel and Crown counsel, at
    the first four counts of the indictment alleging offences by [F.T.] as against [R.G.],
    please,  and ask yourselves the question how much further you need to go with
    this line of questioning and we can do this very briefly.

MS. HEPBURN:     Yes, I was just going to ask this last
    question.

THE COURT:        Well, theres no allegation in the indictment
    that theres an assault out  out  the indictment with respect to charges
    involving [R.G.] are of a sexual nature.  Your questions are turning
vis-à-vis
[R.G.], not [C.B.], are turning to discipline of an injured nature that doesnt
    form the subject matter of the charge and thats what Im addressing and thats
    where we need to have a short discussion and, very briefly, I dont think the
    jury has to leave. How much further do you need to go at this?

MR. WILCOX:       Your Honour.

THE COURT:        I dont think that.

MR. WILCOX:       If I might, Im not opposed to my fiend
    eliciting

THE COURT:        But I might be

MR. WILCOX:       this evidence from this witness.

THE COURT:        but keep going.

MR. WILCOX:       That is to say it would not be objectionable
    on the basis that its disreputable conduct not within any of the counts of the
    indictment

THE COURT:        Right.

MR. WILCOX:       But I am not making that objection.  So, my
    friend is free to

THE COURT:        All right.

MR. WILCOX:       elicit that evidence.

THE COURT:        How much further do you need to go? 
    Certainly, theres allegations of inappropriate and perhaps inappropriate and 
vis-à-vis
the household in general, stern discipline, corporal
    discipline, but how much further down that road
vis-à-vis
[R.G.], do
    you need to go?  Just to help the jury, there is of course, an allegation of
    discipline in the 10 counts in this Court case, one of them involves [C.B.]
vis-à-vis
the broken clavicle which we heard about yesterday and you may be asking this
    witness questions about that.  You may not, I dont know, but youre turning
    now to corporal punishment, an injury, that doesnt form the subject matter of
    any of the charges
vis-à-vis
this witness.

[13]

At
    a later point in the trial, during Crown counsels persistent cross-examination
    of the appellants witnesses concerning the appellants use of his belt to
    discipline his children, the trial judges frustration seemed to reach the
    tipping point as captured by the following extract:

Its  its almost sounding like the jury is getting pushed to
    think if he can belt me, and I dont remember him belting the kids when he
    could sexually assault the daughters.  If you get to the belt, you can have
    fellatio, sexual intercourse in the presence of A.T. and others.  Am I being
    overly vigilant and concerned or should  should we have  or have we gone far
    enough with this belt questioning?  We need to guarantee everybody that steps
    into this room a fair trial.  Thats why Ive had the jury go out.  And I cant
    second guess myself.  I cant say, well I wonder if I should have said
    something?
Youve spent, whenever we started here, 20, 25, 26, 27 and a
    half, 30 minutes, mainly about the belt.  To me thats enough.  I am going to
    have to obviously give them a caution.  We will work that out later, but it
    just sounds to me that you are trying to develop a theory that a man who belts
    you and you dont see him belt the sisters is a man who will sexually assault
    the sisters.  Its as simple as that
, but maybe I am out to lunch.  Youve
    got to help me with this Crown Counsel. Where are you going with this
    persistent line of questioning on the belt and is it  you have made your
    point. [Emphasis added.]

(iv)

JURY INSTRUCTION ON THE ISSUE OF DISCREDITABLE CONDUCT

[14]

The
    jury instruction dealing with the discreditable conduct issue is as follows:

I would now like to speak to you about some of the evidence you
    heard in this case with respect to the use of the belt as a means of corporal
    punishment.

[F.T.] is not charged in this trial with assaulting any of his
    children, including [C.B.] and [R.G.] with a belt in any way, shape or fashion.
    Accordingly, he cannot be convicted of an offence relating to the use of a
    belt, if any.

For Defence counsel the belt evidence was important for you to
    consider when assessing [R.G.]s credibility and truthfulness in light of [R.G.]s
    assertion that she saw her father strike her siblings and herself on their bare
    genitals with a belt.

From Crown counsels perspective the belt evidence was
    important for you to consider as a factor as to why the complainants may not have
    come forward out of fear and as a factor in assessing the credibility of
    defence witnesses as whether the belt was used in discipline and who may have
    seen it used and as to whether the defence witnesses were consistent in their
    evidence relating to discipline with respect to the belt.

(v)

DISCUSSION

[15]

Limiting
    instructions in relation to evidence of extrinsic misconduct have three
    elements. The first describes the evidence under consideration, the second
    element is a positive instruction that advises of the permitted use of the
    evidence, and the third is a negative instruction cautioning the jury about the
    prohibited use of such evidence:
R. v. T. (J. A.)
, 2012 ONCA 177, 288
    C.C.C. (3d) 1, at para. 53.

[16]

The
    appellant submits that the trial judges jury instruction was deficient in two
    respects. The first deficiency pertains to the failure to tell the jury that
    propensity reasoning based solely on the appellants discreditable conduct is
    prohibited. I agree with this submission.

[17]

In
R. v. D. (L. E.)
, [1989] 2 S.C.R. 111, 50 C.C.C. (3d) 142, at pp.
    127-8, Sopinka J. noted the three dangers of bad character evidence. First, if
    the jury accepts the accused committed the prior bad acts, they may assume
    the accused is a bad person who is likely to be guilty of the crimes charged.
    Second, there is the potential for the jury to punish the accused for past
    misconduct by finding the accused guilty of the offence charged. Third, the
    jurys attention is deflected from the main purpose of their deliberations.

[18]

Given
    the seriousness of the allegations of criminal and disreputable conduct, the
    risk of prejudice to the appellant in this case was high, and a clear
    instruction as to the prohibited use of the bad character evidence was
    essential.  The trial judge clearly understood those dangers when he told
    counsel, it just sounds to me that you are trying to develop a theory that a
    man who belts you and you dont see him belt the sisters is a man who will
    sexually assault the sisters.


[19]

For
    reasons not apparent in the record, the trial judge failed to provide the
    cautionary instruction he promised. The jurors ought to have been told that
    they must not rely on the evidence on other counts of the indictment, or
    evidence of other uncharged criminal conduct, as proof that the appellant was
    the type of person likely to have committed the crimes charged: see
T. (J. A.)
,
    at para. 67.

C.

FAILURE TO PROVIDE ADEQUATE INSTRUCTIONS ON MULTIPLE COUNTS

[20]

The
    appellant has a second complaint about the adequacy of the jury charge. It
    again relates to the failure to provide an appropriate negative jury
    instruction.  He submits that the jury ought to have been told that a positive
    finding of credibility with respect to one complainant could not be used to
    support the credibility of the second. Again, I agree.

(i)

CONTEXT

[21]

Both
    complainants had a troubled history of mental health issues. A detailed canvass
    of this evidence is unnecessary. However, as a backdrop to the appellants
    submission, I make three observations with respect to R.G.s evidence.

[22]

First,
    R.G. was in a residential treatment centre in British Columbia when she made
    her complaint of abuse to the police. At trial, an important aspect of her
    testimony involved recovered memory of the incidents of abuse. The
    complainants evidence was that for a period of 13 years, from the time she
    left the family home in Sudbury at the age of 16, until her admission into the faith-based
    treatment centre at the age of 29, she had no recollections or memories of
    abuse. No expert evidence was called on the issue of recovered memory nor were therapeutic
    records filed as exhibits.

[23]

Second,
    when pressed by trial counsel to explain certain important inconsistencies
    between her statement to police and her trial testimony, R.G. explained that
    this was a function of her dissociative identity disorder. She testified that a
    characteristic of this disorder was to have alter identities or different personalities
    whom she named Amanda, Emily and Jessica. R.G. explained that it may have been
    one of her alters that experienced the events described in her statement to
    the police.

[24]

Third,
    very shortly after hearing the complainants explanation concerning the
    inconsistencies between her police statement and her evidence, in the absence
    of the jury, the trial judge suggested that Crown counsel re-evaluate the
    viability of the prosecution. A fair reading of the transcript indicates the
    trial judges serious concerns about the reliability of R.G.s evidence.

[25]

I
    make these observations to provide focus to appellate counsels argument as to
    the importance that the jury understand that one complainants evidence could
    not confirm the evidence of the other complainant. It is argued this was particularly
    essential in the circumstances of this case for the jury to understand that a
    positive finding of credibility of C.B.s evidence could not bolster the
    credibility of R.G.


(ii)

THE TRIAL JUDGES INSTRUCTIONS

[26]

The
    trial judge told the jury:

Each allegation is a separate charge. You must make a separate
    decision and give a separates verdict for each charge. The verdict may, but
    does not have to be the same on each charge. You must make your decision of
    each charge only on the basis of the evidence that relates to that charge and
    the legal principles that I tell you apply to your decision on that charge. You
    must not use evidence that relates only to one charge in making your decision
    on any other charge.

(iii)

DISCUSSION

[27]

A
    fuller limiting instruction was required. While the trial judges instruction
    was correct in so as far as it went, it was incomplete.  In addition to the
    caution prohibiting propensity reasoning, the jury should have been advised that
    they could not use the evidence of one complainant to support or confirm the
    evidence of another complainant: see
R. v. K.P
.
, 2009 ONCA 408,
    252 O.A.C. 10, at para. 7. This additional instruction complements and amplifies
    the admonishment that the jury consider the evidence on each count separately. While
    this is a case that was approached by counsel and the judge on the basis that
    similar act evidence did not apply, it is evident that the evidence of abuse of
    each complainant overlapped to a significant extent. In these circumstances, it
    was particularly important to displace a jurors normal inclination to reason
    that the several aspects of similar behavior attributed to the appellant, if
    accepted, tended to mutually corroborate the evidence of each complainant. That
    type of reasoning is prohibited and a caution that one complainants evidence
    could not confirm the evidence of the other was required.

D.

CONCLUSION

[28]

The
    failure to provide the jury with proper limiting instructions constitutes an
    error in law and necessitates the quashing of all convictions. As a new trial
    is required, it is unnecessary to address the appellants other grounds of
    appeal. The appeal is allowed, the conviction quashed and a new trial is
    ordered.

Released: December 21, 2015 GS

C.M.
    Speyer J. (
ad hoc
)

I
    agree G. R. Strathy C.J.O.

I
    agree P. Lauwers J.A.


