



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    that could identify the complainant or a witness shall not be published in any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. Samuels, 2013
    ONCA 551

DATE: 20130918

DOCKET: C52516

Weiler, Blair and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Samuels

Appellant

Faizal Mirza, for the appellant

John Patton, for the respondent

Heard: May 23, 2013

On appeal from the conviction entered on April 14, 2010,
    and the sentence imposed on May 31, 2010, by Justice A. Donald K. MacKenzie of
    the Superior Court of Justice, sitting with a jury.

Strathy J.A.:

[1]

The appellant was charged with living off the avails of prostitution (
Criminal
    Code
s. 212(1)(j)), living off the avails of prostitution of a person
    under 18 (s. 212(2)), aiding the complainant to engage in prostitution (s.
    212(1)(h)) and of uttering a threat (s. 264.1(1)(a)). He was acquitted of the living
    off the avails offences, but was found guilty of the lesser offence of
    attempting to live off the avails of prostitution of a person under 18 and of
    aiding the complainant to engage in prostitution. He was acquitted of uttering
    a threat. He was sentenced to 18 months incarceration. He appeals his
    conviction and sentence.

[2]

The appellant advances several grounds of appeal. In my view, the dispositive
    one is the trial judges failure to instruct the jury on the impermissibility
    of propensity reasoning in accordance with the decision of the Supreme Court of
    Canada in
R. v. D. (L.E.)
, [1989] 2 S.C.R. 111, and this Courts
    decision in
R. v. B. (C.)
(2003), 171 C.C.C. (3d) 159. As a result, and
    for the reasons that follow, I would order a new trial.

A.

THE FACTS

[3]

The complainant left her grandmothers home at 17 to work as a stripper.
    She needed a place to live and another stripper, C., introduced her to the
    appellant, Robert Samuels. He was the tenant of a two-bedroom apartment and
    was, according to his evidence, looking for another roommate. She moved into a
    spare bedroom in his apartment on November 11, 2007, and stayed there until
    November 15, 2007, the period covered by the indictment. Two other women, K. and
    J., were also living in the apartment. The complainant testified that she
    shared a room with J. and that K. slept with the appellant.

[4]

The complainant testified that after she moved in, the appellant drove
    the women to a hotel where they used his computer to post prostitution
    advertisements on the Craigslist website. He then drove them to an apartment on
    Bloor Street, where they engaged in prostitution. She gave the money she earned
    to a woman called JoJo, who ran the establishment. She also went to the
    Church and Wellesley area with the appellant and others for the purposes of
    prostitution. She initially told the appellant that she was 22 years old, but
    on the night of November 14, she told him she was 17.

[5]

On November 15, 2007, the complainant contacted her grandmother because
    she was afraid of the appellant and wanted to escape his control. The
    grandmother called the police, who came to the Bloor Street apartment and took the
    complainant to the station, where she gave a videotaped statement. With the
    complainants assistance, the police determined that the Craigslist
    advertisements were still in place and were being updated.  They obtained a
    warrant to search the appellants apartment for computer equipment, and for clothing
    and false identification belonging to the complainant.

[6]

In the course of the search the police seized:

·

a computer, being used by K. and another woman to access Craigslist;

·

four cell phones;

·

a notebook, with a picture of Tinkerbell on the cover,
    containing various entries, some prostitution-related;

·

two handwritten notes, one of which appeared to be a draft of a
    letter to the writers mother;

·

two books, one called Pimping Aint Easy and the other
    Pimpology; and

·

$1,660 in cash.

[7]

T
he Tinkerbell notebook stated near the front,
    This Notebook belongs to [a nickname for K.]. It contained such mundane entries
    as a grocery list and a list of chores. It also contained descriptions of
    several women by age, background, weight and chest size, daily records of
    appointments, including customers names, duration of appointments and prices,
    the phone number shown in some of the Craigslist advertisements and the address
    of the Bloor Street apartment.

[8]

One of the handwritten notes, on Comfort Inn stationery, said, in part:

Hi mom I know I havent talked to you in forever and you are
    kinda rite on what you think I am doing ... I am NOT selling my body. I work at
    a place called blue loougen. It is a message place with no extars meaning NO
    SEX NO ORAL.

[9]

The police later extracted from the computer photographs of women in
    sexually explicit poses and internet links to prostitution advertising. They
    also extracted text messages from the cell phones.

[10]

These
    materials included the following:

·

approximately 40 thumbnail photographs, showing partly clothed
    or nude women in sexually explicit poses;

·

about 20 pictures and images, described as Craigslist Pictures
    on Computer, some showing women in erotic poses;

·

photographs of the appellant in various settings with some of the
    women shown in the photographs, as well as with other men; and

·

text messages, taken from one of the cell phones which had the
    phone number listed in some of the advertisements, containing, among others,
    messages from potential customers making inquiries about services, prices and
    appointments.

[11]

In
    addition, the Crown introduced, through one of the police officers, twelve
    advertisements downloaded by the police from the Erotic Services section of Craigslist,
    containing sexually explicit photographs of women and advertising sexual
    services and prices. In some cases, the contact telephone number listed in the Craigslist

advertisements matched the number of one of the cell phones found in the
    appellants apartment. Some of the photographs matched images of women found on
    the appellants computer. Most of the advertisements were posted either before
    or after the dates of the alleged offences in the indictment.

[12]

That
    cell phone contained some text messages from K., including one that said Hey,
    can we do any out calls? Two of the other cell phones found in the appellants
    room had his cell phone number programmed to it. The Tinkerbell notebook found
    in his apartment also contained references to a nickname for K., the numbers of
    two of the cell phones found in his room, a reference to Craigslist and the
    address of the Bloor Street apartment.

[13]

At
    trial, the appellant denied any involvement in pimping and denied pimping the
    complainant. He said K. and the complainant were simply tenants in his
    apartment and denied that he had taken them to work as prostitutes.

[14]

The
    appellant acknowledged that he owned the computer and had possession of the
    cash and the two books about pimping. Although he conceded that his computer
    contained pictures of naked women, including K., and that some of K.s pictures
    had been posted to an escort services site on Craigslist, he denied that he was
    responsible for the photographs and internet postings. He pointed out that he
    did not have exclusive use of the computer and said he regarded his computer in
    much the same way as his television  it was there for everyone to use.

[15]

The
    only Crown witnesses, apart from police officers, were the complainant and the
    rental agent for the appellants apartment. The appellant testified. He called several
    witnesses, including the complainants grandmother, some of his friends,
    including his girlfriend, and C., who testified that she introduced the
    complainant to the appellant, but only to help him to find a roommate. She
    testified that K. was not the accuseds girlfriend and was not sleeping with
    him. She denied that she was acting as a recruiter of prostitutes for the
    appellant.

B.

the ruling on admissibility

[16]

The
    trial judge made a number of pre-trial rulings.
[1]
It is only necessary to review his ruling on the exclusion of the evidence
    derived from the search of the appellants apartment. The defence sought to
    exclude this evidence on the ground that its admission would have a prejudicial
    effect on the fairness of the trial, which would outweigh its probative value. The
    defence asserted that the admission of the evidence would lead the jury into
    the error of using the evidence for an improper purpose, such as propensity
    reasoning. In particular, the defence argued that:

a.

the titles and
    contents of the two books had no probative value in relation to the charges
    against the appellant and would lead the jury to draw improper inferences;

b.

the cell phones
    did not belong to the complainant and the text messages were to and from
    persons who were unknown and their admission would have a prejudicial effect;

c.

the images in
    the computer of scantily-clothed or nude women in sexually provocative poses and
    photographs of the appellant with some of the women were prejudicial and
    without probative value, because there was no evidence the appellant had
    exclusive use of the computer and no evidence of complaints made by anyone
    shown in the photographs; and

d.

the Tinkerbell
    notebook, according to its cover, belongs to [a nickname for K.] and the
    writing in the book by someone other than the complainant had no probative
    value.

[17]

The
    Crown acknowledged that this evidence could have some prejudicial effect, but contended
    that this was outweighed by its probative value, namely that it was
    confirmatory of the complainants evidence and was necessary to assist the jury
    in evaluating the complainants evidence on the one hand, and the appellants
    on the other. The Crown said that any prejudicial effect could be addressed by
    an instruction to the jury about the proper use to be made of the evidence, to
    prevent findings based on propensity reasoning.

[18]

The
    trial judge permitted the evidence to be introduced. He found that some of the
    evidence, such as the two books, the text messages, the computer contents and
    the Tinkerbell notebook, could be confirmatory of the complainants
    allegations. The text messages could also go to the appellants state of mind,
    even though they did not specifically refer to the complainant. He concluded
    that the probative value of this evidence outweighed its prejudicial effect. He
    suggested that any prejudicial effect of the text messages could be allayed,
    if necessary, by a limiting instruction having regard to the evidence to be
    adduced at trial.

[19]

No
    mid-trial instruction was requested at the time this evidence was admitted and
    none was given.

C.

THEORIES OF DEFENCE AND CROWN

[20]

In
    his closing address, defence counsel told the jury that the case was
    essentially one of credibility as between the complainant and the appellant and
    he argued that

the appellants evidence raised a reasonable doubt about
    his guilt. He submitted that on the complainants own evidence, the appellant
    was never in the Bloor Street apartment, never spoke to

JoJo and never
    saw the appellant in contact with JoJo. He submitted that there was reasonable
    doubt about whether the appellant knew what was going on in the Bloor Street
    apartment and whether he received any money from the complainants
    prostitution.

[21]

Defence
    counsel contended that the computer pictures, the Craigslist

advertisements
    and the text messages were unconnected to the complainant and were simply distraction:

Theres not one piece of evidence, of all the other
    videotapes, all the other computer images youve seen, all the cell phones that
    youve seen, that connected to [the complainant]. Nothings about [the
    complainant]. Im sure youve been wondering wheres the picture thats going
    to come up with [the complainant]. Where is the text message from [the
    complainant].  Theres none of that. The text, the computers, the notes, none
    of it has anything to do with [the complainant], theres no evidence. And none
    of it was put to [the complainant].

Youll recall [the complainant] is on the stand for quite
    some time. None of those images were put to her, does she know is this her, is
    that her. None of them were connected to her. None of them were  they were put
    to her in the sense of can you recognize this. Nothing was her. She didnt
    recognize any of those images being her. None of the files had anything to do
    with her. None of the Craigslist advertisements had her name, had her
    description, had her picture. So, theres all this other evidence. Sure, what
    is it evidence of? Its distraction. The issue is [the complainant] was not
    being pimped by Mr. Samuels, thats the issue. Whether theres all sorts of
    other evidence, thats just distraction from that main issue.

[22]

Anticipating
    the Crowns argument, defence counsel added that the text messages and pictures
    would be used by the Crown to make up for the lack of evidence of a
    traditional pimping scenario by showing inflammatory and grimy
    pornographic pictures:

Theres going to be a lot of emphasis on these text
    messages, a lot of emphasis on these computer pictures. Why? Because we dont
    have the traditional pimping scenario here. We dont have the grimy details of
    violence and abuse, so how do we  how does the Crown, you know, bring that
    element out? Lets show lots of pornographic pictures that are on the computer,
    to add that element of thats, you know, a level of griminess, that level of,
    you know, this is not something that, you know, sits well with us. So, show
    these pictures.

[23]

The
    Crowns theory, as put to the jury in counsels closing, was that the appellant
    allowed the complainant to stay in his apartment, rent free, because he saw an
    opportunity to profit from her willingness to engage in prostitution. He
    enlisted her to join his existing stable of women, K. and J., who he was pimping.
    He supplied the accommodation and transportation and he had the tools of the
    trade, including cell phones and the computer containing photographs and
    advertisements to sell sexual services. He also had how to books and
    substantial amounts of cash.

[24]

The
    Crowns position was that the appellants evidence was not credible. Crown
    counsel told the jury:

Quite simply, the Crowns position is that Mr. Samuels lied
    to you repeatedly, over and over again. He lied to you about his relationship
    with K. And if hes prepared to lie to you about his relationship with K., hes
    prepared to lie to you about the relationship with [the complainant].

[25]

The
    Crown went on to point out that the pictures used for the Craigslist

advertisements
    were on the appellants computer and accessible to him, a few clicks away
    from his own personal pictures. The Crown asked the jury to consider whether,
    if K. was only a roommate as the appellant alleged, she would have put
    compromising pictures of herself on his computer. The Crown said that his
    computer was being used because hes managing the operation.

[26]

Crown
    counsel explained the relevance of the computer and cell phone evidence to the
    jury as follows:

So, when my friend says, oh, whats the big deal about all
    this other evidence, well, it is a big deal. It confirms a major part of [the
    complainant]s evidence when she says that K. and J. were working for Mr.
    Samuels. Their pictures are on his computer. The Craigslist pictures were on
    his computer. Four phones are in his bedroom. One of those phones comes back to
    the Craigs listing.  One of those phones, the Craigslist phones, has a text
    message going to Mr. Samuels phone, saying, Are we doing out calls at a time
    approximately  I think it was November 1
st
. So, 11 days prior to [the
    complainant] being involved with Mr. Samuels, theres this text message.

So, thats what all that evidence is about. It confirms and
    can restore your faith in [the complainant]s ability to be credible and
    reliable. She says that they were working for him, and there is an abundant
    amount of evidence to suggest that they were working for him.

[27]

On
    the subject of the two books, the Crown said:

And I pause here to say this. Mr. Samuels is not being
    prosecuted for having bad taste in literature. Were not here because he was
    found with those two books. Were here because of all the evidence that he has
    been found in possession of and all the evidence that we have.

[28]

This
    comment, while perhaps a witty throwaway, invited the jury to consider all the
    evidence found in the accuseds possession in order to determine his guilt. As
    I will explain, the trial judge was required to explain the test to be met
    before the jury could use this evidence and the permissible and impermissible
    uses of it, if the jury found it met the test.

D.

The Trial Judges Instructions

[29]

In
    his instructions to the jury, the trial judge made several references to the
    material seized from the appellants apartment and the computer files and text
    messages discovered by the police.

[30]

He
    referred first to the handwritten notes and the Tinkerbell notebook, explaining
    that they could be used as circumstantial evidence of the nature of the
    transactions taking place from the appellants apartment. He told the jury that
    the documents could not be used for the truth of their contents and that the
    weight to be given to them was a matter for the jury. He said:

The handwritten materials cannot be used to prove the truth
    of the factual contents of the handwritten materials. The handwritten material,
    however, can be used to establish the fact that they were made and as
    circumstantial evidence of the nature of the transactions being conducted in
    and from the accuseds apartment on Burnhamthorpe. This evidence, being
    circumstantial in nature, will be considered by you together with all the
    evidence youve heard at the trial in arriving at your verdict. Again, as
    judges of the facts, you will decide what weight should be given to it.
    However, as Ive mentioned, you cannot use it to prove the contents, the truth
    of the contents of the handwritten material.

[31]

He
    then referred to the evidence of one of the police constables who had searched
    the appellants apartment and interviewed K. and C., who were found in the appellants
    apartment, but who denied that they worked in the sex trade. The same officer
    had determined the phone numbers of the cell phones found in the appellants
    apartment and correlated them to advertisements on Craigslist
.
He confirmed
    that some of the advertisements referred to K. under her stage name. The
    trial judge explained:

[The officers] involvement was also involving the
    investigation of two of the cell phone numbers, and that is, checking those
    numbers by correlating them to the Craigslist erotic section. Youve heard
    about that. Craigslist has a section, escort and  erotic I guess is the proper
    term. Those section ads are for escort prostitution services and also to obtain
    photos of sex trade workers in those sources. He also testified that some of
    the search results he obtained on the Craigslist erotica section did refer and
    were applicable to one of the females who were found in at the apartment at the
    search and that is this K. under her stage name... He did ask the two females
    what their involvement was in terms of whether they were being pimped and both
    denied that they were sex trade workers. They also declined to give any
    statements.

[32]

The
    trial judge also instructed the jury with respect to the cell phone data
    extracted by the police and contained in three exhibit binders. He said:

You will have those binders available to you that you can
    look and peruse at length. But I will want you to recall that some of these
    messages, both the call histories, text messages, et cetera, were to the
    accused on his cell phone numbers. Other messages were from the accused on his
    cell phone numbers. We have no evidence as to the true identity of the person
    or persons who may have originated the calls or messages to the accused. In
    this situation, these call histories and the text messages cannot be used to
    prove the factual contents of the call histories and text messages. However,
    those call histories and text messages can be used to establish the fact they
    were made and may be used as evidence of the state of the mind of the
    addressee, that is, the accused.

[33]

He
    explained that the evidence was circumstantial and would have to be considered
    with all the other evidence and that it was up to them to determine what weight
    to give it. He added that if the jury found that the accused was the originator
    of any of the calls or text messages, they could use the evidence to prove the
    factual contents of the messages.

[34]

Near
    the conclusion of his review of the evidence, just before he gave a
W.D.

instruction,  the trial judge gave the jury the following caution:

Theres one thing that you must keep in mind, ladies and
    gentlemen, particularly when you are reviewing the exhibits, particularly those
    exhibits that have the pictures from the computer that relate to the Craigslist
    erotic area section. The charges that the accused is facing here do not relate
    to any acts of prostitution of any persons whose names have been bandied about
    here. They relate solely to the allegations against the accused with respect to
    the complainant.

[35]

The
    issue before us is whether this instruction was sufficient, in the context of
    the charge as a whole.

E.

The Submissions of Counsel

[36]

The
    appellant submits that, having ruled that the Crown could adduce text messages
    about sexual services, advertisements of sexual services, and provocative
    photographs related to sexual services - many of which had no connection to the
    complainant and related to conduct outside the time frame of the indictment -
    it was incumbent on the trial judge to caution the jury that they were not to
    use this evidence to find that the accused was a bad person with a propensity
    to commit prostitution-related offences. The appellant contends that this was
    particularly necessary because: (a) the material was voluminous; (b) there was
    no attempt to vet or edit the evidence, to separate out the messages,
    photographs and notes that were relevant and temporally related to the charges;
    and (c) the nature of the material was likely to offend the jury and was highly
    prejudicial to the appellant.

[37]

This
    position was summarized in the appellants factum as follows:

This was highly prejudicial evidence of past and post charge
    conduct tending to demonstrate that the accused was a person of bad character
    with a general propensity to associate with prostitutes, commit crimes of a
    nature similar to the one in question, and therefore was a person more likely
    to have committed that [
sic
] crime in question. Without a strong
    judicial caution there was a risk that the jury would use the evidence for such
    a purpose or punish him for uncharged conduct. It is possible that propensity
    reasoning played a role in the verdict, particularly when one considers the
    absence of corroboration the Appellant knew she was under the age of 18 and the
    frail evidence of control, direction etc.

[38]

The
    appellant submits that the trial judges caution did not go nearly far enough.
    He says that in the context of the large volume of unfiltered and inflammatory
    material, there was a real risk that the jury would use the evidence to reason
    that the appellant had a general propensity to engage in prostitution-related
    activity, was a person of bad character and that they should punish him, if not
    for the crimes at issue, then for his past misconduct. He says that the need
    for such an instruction was manifest, because the danger of propensity
    reasoning had been addressed on the application to exclude the evidence and the
    Crown had acknowledged that an instruction to the jury could be used to
    neutralize the prejudicial effect of the evidence.

[39]

The
    Crown, on the other hand
,
submits that the impugned material was neither
    similar fact evidence nor evidence of propensity. It was part of the narrative
    and corroborative of the complainants evidence of what happened to her  she
    was conscripted by the appellant and placed in a pre-existing milieu of
    prostitution. She used the appellants computer to access an escort services
    website. The Crown submits that the circumstantial evidence was temporally
    related to the offences charged and corroborated the underlying relationship
    between the complainant and the appellant.

[40]

The
    Crown submits that the trial judge recognized the need for a limiting
    instruction and he gave an instruction tailored to the circumstances: reminding
    the jury that the charges against the appellant related to his relationship
    with the complainant and not to the other women in the apartment.

[41]

With
    this background, I now turn to the applicable legal principles.

F.

The Legal Principles

[42]

Evidence
    may be admissible for one purpose but inadmissible for another. Where the
    evidence relates to conduct that is extrinsic to the charges before the court,
    it may be irrelevant and inadmissible if used for one purpose, but relevant and
    admissible if used for another. The trial judge is required, as he did here, to
    weigh and balance the evidence to determine if the prejudicial effect related
    to the forbidden purpose outweighs its probative value for the proper purpose
.

[43]

The
    courts have observed in cases such as
R. v. D. (L.E.)
, [1989] 2 S.C.R.
    111, at pp. 127-128 and
R. v. J.A.T.

2012 ONCA 177, 288 C.C.C.
    (3d) 1, at para. 52, that evidence of such extrinsic misconduct carries three
    particular risks:

a.

the jury may
    conclude that the accused is a bad person and convict on the basis of
    propensity reasoning that he/she is likely guilty of the offence charged;

b.

the jury may
    seek to punish the accused for past misconduct or for conduct unrelated to the
    offence; and

c.

the jury may be
    confused, and their attention may be deflected by the analysis of the misconduct.

[44]

Courts have frequently stressed the need to inoculate the jury
    against the risks of becoming side-tracked by such impermissible reasoning. For
    example, in
D. (L.E.)
, Sopinka J., writing for the majority, observed
    at pp. 128-129:

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

In the instant case, the trial judge gave the jury no such
    warning. The similar fact evidence was treated simply as part of the whole body
    of evidence on which the jury was to determine innocence or guilt. The purpose
    of the admission of the evidence was not identified and its use was not
    limited, although the trial judge advised the jury at the time the evidence was
    admitted that he would give instructions as to the use that could be made of
    it. Furthermore, the jury members were not warned that they were not to engage
    in the prohibited line of reasoning to which I have referred. I conclude,
    therefore, that the charge to the jury was not adequate.

[45]

In
J.A.T.
, Watt J.A. explained the elements of a jury instruction where
    evidence of extrinsic misconduct has been admitted at para. 53:

Where evidence of extrinsic misconduct is admitted
    exceptionally in a criminal jury trial, the chief work of mid-trial and final
    instructions is prophylactic: to confine jury use of this evidence to its
    permitted purpose and to abjure prohibited reasoning:
B. (F.F.)
, at
    pp. 707-708 and 733-735. These limiting instructions, whether given as
    mid-trials or as finals, should contain three elements:

i.  a description of the evidence to which the
    instruction applies;

ii.  a positive instruction advising the jury about the
    use they may make of the evidence (the permitted use); and

iii.  a negative instruction directing the jury about
    the use they must not make of the evidence (the prohibited use).

[46]

It
    is well settled that this kind of instruction is not confined to cases of
    similar fact evidence and is required in all cases where the dangers
    associated with bad personhood reasoning exist:
R. v. B.(C.)
(2003),
    171 C.C.C. (3d) 159 (Ont. C.A.), at para. 25. The same point was recently made
    by this court in
R. v. Chamot
, 2012 ONCA 903, 296 C.C.C. (3d) 91, at
    paras. 62-63:

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.

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 accused's 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 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 appellant's bad character that the
    appellant was guilty because he is the sort of person who is likely to commit
    the offences in question.
[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.

G.

Application of the Principles

[47]

I
    begin with the proposition, set out in
R. v. Bevan
, [1993] 2 S.C.R.
    599, at p. 613, that in cases such as this, where a trial judge has exercised
    his or her discretion to admit cogent but prejudicial evidence on the basis
    that the probative value outweighs its prejudicial effect, the trial judge is
    in the best position to assess the atmosphere of the trial and the effect that
    the evidence or instruction may have on a jury hearing the case [and] the trial
    judge's decision on these kinds of issues should not be lightly interfered with
    on appeal.

[48]

It
    is also well-settled that a jury must be properly instructed
,
not
    perfectly instructed. Failure to tell jurors everything they might have been
    told is not misdirection:
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d)
    16, at paras. 69-70.

Likewise, the message can be given to the jury in
    different ways and the question is whether or not the instruction accomplished
    its purpose, not whether it follows a particular formula:
R. v. Smith
,
    2009 SCC 5, [2009] 1 S.C.R. 146, at para. 2.

[49]

In
    fairness to the trial judge, he received no assistance from counsel on this
    issue. There were extensive pre-charge discussions, in the course of which
    counsel were provided with the portions of the charge dealing with both the
    trial judges general legal instructions and his instructions specific to the
    charges. Neither counsel requested a caution with respect to propensity
    reasoning in relation to the evidence at issue. As this court observed in
R.
    v. J.S.
, 2012 ONCA 684, 292 C.C.C. (3d) 202, at para. 40, the failure of
    counsel to object must be accorded considerable weight in such circumstances.

[50]

Nor
    did defence counsel object after the charge. The failure of counsel to object
    is a factor that can be taken into account, but it is not determinative: see
Chamot
,
at para. 73.

[51]

Finally,
    I appreciate the context in which jury instructions are prepared, in the course
    of and immediately following a lengthy trial, in real time, without much time
    for research and calm reflection, and under pressure to keep the attention of
    the jury and complete the trial efficiently.

[52]

Having
    said that, I am satisfied that the evidence required a caution to the jury. The
    Crown and the trial judge recognized it in the context of the ruling on
    admissibility. The trial judges instruction went part way. In my view, it did
    not go nearly far enough
.


[53]

As
    I noted earlier, the Crown invited the jury to consider all the evidence that
    [the accused] has been found in possession of. This played to the perfectly
    human tendency of the jury to reason that if the appellant was found in
    possession of material relating to pimping, he must be a pimp, and to jump to
    the conclusion that he must have pimped the complainant. The trial judge did
    not tell the jury that before making any use of the evidence, they had to
    determine whether they believed the appellant when he disavowed any knowledge
    of or connection to the evidence. They should have been instructed that if they
    believed him, they could make no use of the evidence.

[54]

They
    should also have been instructed that if they were satisfied that there was a
    link between the appellant and any or all of the pictures and Craigslist

advertisements,
    the text messages, the Tinkerbell notebook and the pimping books, there were
    certain things they could use that evidence for and certain things that they
    could not use it for.  They could use it for the purposes described in the
    pre-trial ruling, namely as going to the credibility of the complainant and the
    appellant, as potentially corroborative of the complainants evidence, and as
    evidence of the appellants state of mind. They could not use it for the
    purpose of determining that the appellant was a bad person, a low-life pimp who
    exploited women and who deserved to be punished. They could not use it for the
    purpose of reasoning that because he pimped other women he must have pimped the
    complainant. They could not permit their examination of the evidence to
    distract them from the question of whether the appellants guilt had been
    established beyond a reasonable doubt with respect to the complainant specifically.

[55]

It
    seems to me that when the trial judge made his ruling on the admissibility of
    the evidence, having specifically averted to the issue of propensity reasoning,
    it would have been timely to discuss the instructions the jury should receive
    on the permissible use of the evidence as well as the advisability of a mid-trial
    instruction: see Justice David Watt,
Watts Manual of Criminal Jury
    Instructions

(Toronto: Thomson Carswell, 2005), at p. 202.

H.

The Application of the Proviso

[56]

The
    appellant submits that it was mandatory that a caution be given and this is not
    a case in which the proviso in s. 686(1)(b)(iii) of the
Criminal Code
should be applied.

[57]

The
    Crown submits that there was a fair trial and a fair charge. The trial judge explained
    the thrust of the positions of both sides and handled the central issues
    competently and fairly. The Crown submits that there is no reasonable
    possibility that the verdict would have been different had a more extensive
    caution been given.

[58]

The
    Crown bears the burden on this issue and must establish that there is no
    reasonable possibility that the verdict would have been different had the error
    not been made:
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at
    paras. 117-118;
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para.
    28.

[59]

The
    Crown has not discharged its burden. The jury deliberated for a considerable
    time. They began their deliberations on Monday, April 12, 2010 at about 1:00
    p.m. The jurors deliberated late into the evening that day, all day April 13,
    2010 until late in the evening and all day April 14, 2010, until late in the
    evening, when they returned with their verdict at 10:05 p.m. There were nine
    questions from the jury, some containing several parts. These questions were
    answered by the trial judge, who gave further instructions on some issues.

[60]

The
    jury acquitted the appellant on two counts, convicted on one and convicted of a
    lesser included offence on another.

[61]

This
    is not a case in which the evidence was so overwhelming that a conviction was
    the only possible verdict. Nor can I say that there is no reasonable
    possibility that the verdict would have been different had the jury been
    properly charged concerning the use they should make of the evidence. There was
    a clear credibility contest between the appellant and the complainant and there
    was a real risk that the jury would use the evidence, not to test the
    credibility of these two witnesses, but to convict the appellant because he was
    a bad person, a pimp who prostituted other women.

I.

Conclusion

[62]

For
    these reasons, I would allow the appeal on this ground and order a new trial.
    It is therefore unnecessary to consider the other grounds of appeal or the
    sentence appeal.

Released:  RAB                               G.R.
    Strathy J.A.

SEP 18 2013                                    I agree
    K.M. Weiler J.A.

I
    agree R.A. Blair J.A.





[1]

Ruling on s. 8
Charter
Breach Issues
    and s. 24(2) Exclusion Application, 2010 ONSC 3202; Ruling on Pre-Trial Motion Respecting
    Exclusion of Certain Evidence, 2010 ONSC 3200; Ruling on Pre-trial Motion
    Respecting Exclusion of the Evidence or Part Thereof on Video Recording made
    Pursuant to Section 715.1 C.C., 2010 ONSC 3201; Ruling on Defence
    Cross-examination of Complainant on Previous Sexual Acts, 2010 ONSC 3203.


