



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. D.C., 2019 ONCA 442

DATE: 20190528

DOCKET: C62938

Pepall, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.C.

Appellant

Anil K. Kapoor and Dana Achtemichuk, for the appellant

Catherine Weiler, for the respondent

Heard: November 19, 2018

On appeal from the conviction entered on January 20, 2016,
    by Justice Stephen T. Bale of the Superior Court of Justice, sitting with a
    jury.

Pepall J.A.:

Introduction

[1]

The appellant was tried before a judge and jury and convicted of three
    counts of assault with a weapon, one count of aggravated assault and one count
    of assault. He received a sentence of 4.5 years less 10 months credit for
    presentence custody.

[2]

He initially sought leave to appeal his sentence, but has abandoned that
    request.

[3]

In his appeal against conviction, the appellant submits that the trial
    was unfair because he was forced to proceed without counsel despite having
    repeatedly expressed his desire to have counsel represent him. He also submits
    that the trial judge failed to give proper limiting instructions on the use of
    the complainant's prior consistent statements and on the treatment of evidence when
    faced with a multi-count indictment in the absence of a similar fact ruling. As
    I have concluded that the trial judge erred with respect to the absence of a
    limiting instruction on the use of the complainants prior consistent
    statements, there is no need to address the trial fairness or multi-count
    indictment grounds of appeal.

Background Facts

[4]

The appellant and the complainant began dating in 2001. They moved in
    together and started a family in Peterborough.

[5]

The complainant testified that in 2006, she and the appellant started a
    cleaning business. This was a stressful endeavour which coincided with frequent
    abuse, including punching, hitting, and slapping. She stated that the appellant
    commonly hit her with everyday objects: shoes, an ice scraper, broomsticks, a child's
    plastic cup, plastic coat hangers, belts, and electrical cords. She described
    the appellant as a tyrannical and oppressive partner. The complainant also
    testified about a choking incident and some general violence that occurred in
    2006. According to the complainant, the violence became more frequent in 2007
    and continued until their relationship ended in 2013. The appellant was charged
    with one count of assault covering various incidents from January 1, 2007 to
    May 8, 2013 (count two on the indictment). He was also charged with two counts
    of assault with a weapon (counts four and five), to wit assaults with broomsticks
    and belts, covering incidents from January 1, 2008 to May 8, 2013. He was
    charged with aggravated assault on account of an incident that occurred between
    March 20, 2008 and April 3, 2008 (count three). Finally, he was charged with
    assault with a weapon (count one), to wit electrical cords, in relation to an
    incident occurring between May 7 to May 8, 2018.

[6]

At the appellant's first trial, he was represented by counsel, but a
    mistrial was declared. At his second trial, the appellant was unrepresented although
    assisted by counsel who had been appointed pursuant to s. 486.3 for the limited
    purpose of cross-examining the complainant, which he did for more than two
    days. Section 486.3 counsel was present for the majority of the 12 day trial.

[7]

The appellant did not call any evidence. He was convicted on all counts.

Prior Consistent Statement Evidence

[8]

The Crown led evidence of various prior consistent statements of the
    complainant in support of the prosecution of the appellant. The prior
    consistent statements in issue consisted of statements made by the complainant
    to her family doctor, Dr. Auyeung and her mother. The complainant also
    testified about a prior consistent statement made to her family law lawyer, but
    this evidence was not led by the Crown.

(a)     Dr. Auyeung

[9]

The complainant testified that she told Dr. Auyeung that in the summer
    of 2008 the appellant had punched her in the chest and caused her lung to
    collapse, hit her with broomsticks, punched her in the head, and slapped her in
    the face. Dr. Auyeung, the complainant's family doctor, testified that the
    complainant told her that the appellant had hit the complainant, causing her
    lung to collapse. This evidence related to count three, the charge of
    aggravated assault.

[10]

Dr.
    Auyeung also testified that the complainant told her that in the summer of 2008,
    the appellant had hit the complainant on the back and with broomsticks. This
    evidence related to counts two and five.

(b)     The complainants mother

[11]

The
    complainant testified that she told her mother about her collapsed lung at the
    time the assault by the appellant occurred. The complainant's mother testified
    that in the fall of 2008 or winter of 2009, the complainant had told her that
    the appellant had hit the complainant causing her lung to collapse. This evidence
    related to count three.

(c)     The complainants family lawyer

[12]

The
    complainant testified in cross-examination that sometime before August 2014, she
    told her family lawyer that the appellant had forcibly digitally penetrated her
    rectum on one occasion.
[1]
This evidence related to count two.

[13]

The Crown
    did not identify the purpose underlying the admission of the prior consistent
    statements made by the complainant to her family doctor, mother, and family
    lawyer. Both the basis for admissibility, and use of these statements varied by
    count. Some of the prior consistent statements may have been admissible as a
    response to the allegation of recent fabrication. For instance, there was an
    allegation of recent fabrication to support the admission of Dr. Auyeungs
    evidence on counts two and five but not on count three. There was also no
    allegation of recent fabrication to anchor the mothers evidence on count
    three. There was an allegation of recent fabrication relating to the evidence
    of the family lawyer on count two. This statement responded to the allegation
    that the count was motivated and contrived to frustrate the appellant's
    attempts to seek further access to the parties children in Family Court
    proceedings.

[14]

Thus,
    the allegation of recent fabrication applied to certain counts but not all. As
    the appellant concedes, the prior consistent statements could have been
    admitted in relation to the other counts as narrative evidence.

[15]

There
    were three key points in the Crowns closing address where the Crown relied on
    prior consistent statements made by the complainant. First, the Crown asked the
    jury to find the complainant to be a reliable witness. In this context, the
    Crown stated that the complainant remained consistent throughout her
    evidence, that her injuries were corroborated by witnesses including Dr.
    Auyeung, and urged the jury to find that she was not exaggerating. The Crown
    then went on to note:

[The complainant] began to disclose some of the issues she was
    facing back in 2008 before Family Court started, before Small Claims Court,
    before she planned to leave [the appellant]. Her testimony in court is
    consistent with the disclosure she made way back then.

[16]

Second,
    in explaining the disclosure of the abuse by the complainant, the Crown discussed
    the prior consistent statements made by the complainant to her family doctor:

The first real disclosure occurred with Dr. Auyeung. According
    to the doctor, [the complainant] told her that [the appellant] had previously
    hit her in the chest and had caused the collapsed lung. She also said that
    recently he had hit her in the back, and that she was concerned about the lung.
    She told Dr. Auyeung that [the appellant] was abusive, and that he hit her with
    items such as broomsticks. This disclosure occurred in the summer of 2008, and
    ultimately resulted in the involvement of the Children's Aid Society  there
    were on-going discussions between Dr. Auyeung and [the complainant] about the
    abuse.

Finally, counsel went on to ask the jury: if [the
    injuries] were caused by an accident, why tell her doctor about domestic abuse
    in 2008? This question suggested to the jury that the prior consistent
    statements to the doctor were true.

[17]

The
    trial judge did not inquire into the basis for the admission of any of this
    evidence, nor did he give a mid-trial instruction on the permissible or
    impermissible use of these statements. In addition, the final charge to the
    jury was silent on the permitted and prohibited uses of this evidence.

[18]

The self-represented
    appellant did not object to the Crowns closing nor did he provide any
    meaningful input into the content of the trial judges charge to the jury.

Analysis of Lack of Instruction on Prior Consistent Statements

[19]

Prior
    consistent statements are presumptively inadmissible. They lack probative value
    as the repetition of the statement is unrelated to the truth of that statement:
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5;
R. v.
    Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Put differently a
    falsehood does not become true through repetition. If the statements are
    tendered for the truth of their contents, they are inadmissible hearsay
    statements.

[20]

Traditionally,
    prior consistent statements may be admitted to rebut an allegation of recent
    fabrication, for narrative purposes, or as circumstantial evidence: see
R.
    v. Khan
, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-29,
per
Hourigan J.A. leave to appeal refused, [2017] S.C.C.A. No. 139;
R. v. M.A.J.
,
    2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 46.  In
Khan
, at paras.
    58-59,

Doherty J.A., in his concurring reasons, described a more
    principled approach to the admission of prior consistent statements based on
    relevance, materiality, and probative value of the evidence.

[21]

Where
    a prior consistent statement is determined to be admissible under an exception,
    it is admitted for a limited purpose:
Khan
, at para. 27. That purpose
    is determined by the exception it is admitted under. It is important for a jury
    to understand what use they may make of evidence of prior consistent
    statements. Generally, if a prior consistent statement is admitted into
    evidence in a jury trial, the trial judge is obliged to provide the jury with a
    limiting instruction:
M.A.J.
, at para. 47;
Ellard,
at para.
    42. As Watt J.A. explained in
R. v. T.(J.A.),
2012 ONCA 177, 288
    C.C.C. (3d) 1, at para. 53, limiting instructions to a jury have three
    components:


(i)

identification of
    the evidence to which the instruction applies;


(ii)

a positive
    instruction about the use the jury may make of the evidence; and


(iii)

a negative
    instruction on the use the jury must not make of the evidence.

[22]

Limiting
    instructions play an important role in cases involving prior consistent
    statements given the reasoning dangers associated with these statements, and
    their limited use. The trier of fact may infer that consistent repetition is
    evidence of the truthfulness of the statement, and the trier of fact may infer
    that this repetition corroborates the testimony of the witness. These risks are
    particularly important to address in jury trials. As the Supreme Court noted in
Ellard
, there is a danger that similar prior statements  could
appear
to be more credible to a jury, and therefore must be treated with
    caution (emphasis in original): at para. 31. Indeed, the admission of prior
    consistent statements calls out for a limiting instruction because, as Hourigan
    J.A. observed in
Khan
, at para. 35, [t]he line between the
    permissible and impermissible uses of prior consistent statements is a fine one,
    and that line varies based on the purpose for which the statement is admitted: see
    also
R. v. M.P
.
, 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 79.

[23]

Here,
    the trial judge failed to articulate the basis upon which the prior consistent
    statements were admissible, and failed to give any limiting instruction. Even
    assuming that the statements were admissible, he ought to have instructed the
    jury on their prohibited and permissible uses which differed from count to count.

[24]

However,
    the failure to give a limiting instruction is not always fatal. For example,
    where a prior consistent statement is admitted for a purpose where there is
    little likelihood of improper use by the jury, a limiting instruction may be
    unnecessary and confusing:
R. v. Demetrius

(2003), 179 C.C.C.
    (3d) 26 (Ont. C.A.), at para. 21. The trial judges instructions to the
    jury must be assessed in the context of the particular case on a functional
    basis:
Demetrius
, at para. 21;
M.A.J.,
at para. 47;
M.P.,
at para. 80.

It must be determined, based on the circumstances of the
    case and the particular risks presented by the evidence in that case, whether the
    trial judges instructions adequately prepared the jury to properly assess the
    evidence:
R. v. O.(L.),
2015 ONCA 394, 324 C.C.C. (3d) 562, at paras.
    39-40;
Ellard,
at para. 48.

[25]

In
    this case, the failure of the trial judge to provide a limiting instruction was
    a fatal error. The evidence of the prior consistent statements was elicited
    from three witnesses and included substantive details of abuse. Many of these
    details mirrored the testimony given by the complainant at trial. In these
    circumstances, there was a real risk that the jury would improperly use the
    statements to serve as corroboration or confirmation of the complainants
    testimony. This risk was heightened given that the trial judge failed to give a
    standard instruction directing the jury that prior consistent statements may
    not be used for the truth of their contents, or as evidence that what was said
    actually happened: see David Watt,
Watts Manual of Criminal Jury
    Instructions,
2nd ed. (Toronto: Carswell, 2015), at pp. 419-420 (Final 35-D
     Prior Consistent Statements of Non-Accused Witness). The Crowns address to
    the jury opened the door for the jury to accept the prior consistent statements,
    particularly those made to Dr. Auyeung, for the truth of their contents. It was
    incumbent on the trial judge to clarify that such a use was impermissible.

[26]

The
    Crown points to one portion of the trial judges instruction as clearly
    enjoin[ing] the prohibited use of the statements. Under the heading of Prior
    Inconsistent Statements of Non-Accused Witness, the trial judge instructed the
    jury as follows:

Generally, the earlier statement may be used only in assessing
    the witnesss credibility. However, there is an exception when the witness,
    while testifying at trial, accepts all or part of the earlier statement as
    true. In that event, the earlier statement may also be considered as evidence
    of what happened, but only to the extent the witness accepted it as true. It is
    for you to decide what weight, if any, to give to the part of the earlier
    statement that the witness accepts as true.

This instruction follows the model instruction set out
    in
Watts Manual of Criminal Jury Instructions,
for the use of prior
inconsistent
statements: see pp. 325-326 (Final 25-A  Prior Inconsistent Statements of
    Non-Accused Witness (Impeachment and Credibility Only)). However, the same
    instruction is not applicable to the use of prior consistent statements, nor is
    it capable of remedying a lack of instruction on the prohibited uses of prior
    consistent statements. Rather this instruction, absent a limiting instruction
    related to prior consistent statements, was capable of misleading the jury.

[27]

Further,
    the Crown in its closing address to the jury invited the jury to infer
    credibility from consistency. As the trial judge highlighted in his charge to
    the jury, credibility [was] a central issue in this case. This court noted in
R. v. Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.), that where
    credibility is an important issue at trial, the trial judge is obliged to
    impart to the jury that the existence of a prior consistent statement cannot
    in and of itself enhance the credibility of the witness: at para. 33. This is
    explained at para. 37 of
R. v. B.(D.),
2013 ONCA 578, 310 O.A.C. 294,
    in the context of rebutting an allegation of recent fabrication and is
    instructive:

A prior consistent statement that is admissible to rebut an
    allegation of recent fabrication is not admitted to prove the truth of its
    contents. Rather,
it neutralizes the challenge or allegation
of recent
    fabrication.
The evidence of the prior consistent statement is used to
    establish that the challenge is in error, not to show that the statement is
    true or that the witness is likely telling the truth because they said the same
    thing before
. In this sense, the admission of the prior consistent
    statement may impact positively on the witness's credibility insofar as
    admission of the statement removes a motive of fabrication. [Emphasis
    added.]

[28]

Left
    only with the Crowns statements on the matter, the jury was invited to infer
    truthfulness from consistency, and there was a real risk that the statements
    would be viewed by the jury as capable of affirmatively adding to the
    complainants credibility, rather than simply countering the challenges to her
    credibility.

[29]

The
    dangers associated with prior consistent statements were squarely engaged by
    the statements admitted in this case, where the credibility of the complainant
    was central. The trial judges instructions to the jury did not elude to, let
    alone enumerate, these dangers. The jury was not equipped to understand the
    basis for which the statements were admitted, and the trial judges
    instructions failed to prepare the jury to properly assess the evidence.
    Accordingly, the absence of a limiting instruction on the use of the prior
    consistent statements was fatal in the circumstances of this case.

Disposition

[30]

For
    these reasons, the appeal is allowed, the conviction is set aside, and a new
    trial is ordered.

Released: May 28, 2019 S.E.P.

S.E. Pepall J.A.

I agree. P. Lauwers
    J.A.

I agree. David M.
    Paciocco J.A.





[1]

The family lawyer was not called as a witness.


