



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Boone, 2016 ONCA 227

DATE: 20160329

DOCKET: C59417

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Paul Boone

Appellant

Jonathan Shime and Benjamin Elzinga Cheng, for the
    appellant

Stacey Young, for the respondent

Heard: February 24, 2016

On appeal from the convictions entered on December 19,
    2012 by Justice D.J. Gordon of the Superior Court of Justice, sitting with a
    jury.

Sharpe J.A.:

[1]

The appellant engaged in unprotected anal intercourse without disclosing
    the fact that he was HIV-positive. He appeals his conviction on two counts of
    aggravated sexual assault.

[2]

The appellant had anal intercourse with one of the complainants and
    later he and Bowland, his co-accused, also HIV-positive, met the two male
    complainants for a sexual encounter. The group of four engaged in unprotected
    sex, including anal penetration. Neither the appellant nor Bowland disclosed
    their HIV-positive status to the complainants, but the appellant later made
    disclosure to one of the complainants. The complainants immediately sought
    medical attention. Neither contracted HIV.

[3]

The appellant raises several grounds of appeal. The principal ground is
    that the trial judge erred by failing to instruct the jury that if it found
    that the complainants were reckless or prepared to assume the risk of engaging
    in unprotected sex with a partner whose status is unknown, they must acquit.

[4]

For the following reasons, I would dismiss the appeal.

A.

FACTS

[5]

The central facts are not in dispute and may be outlined briefly.

[6]

The appellant and one of the complainants, C.S., had sex together in
    September 2009. At that time, the appellant had not tested positive for HIV and
    he told C.S. that he was clean. However, the appellant tested positive for
    HIV in October 2009 and there was no question that he was HIV-positive when he
    encountered C.S. again in March 2010.

[7]

On March 28, 2010, the appellant engaged in unprotected anal intercourse
    with C.S. in a motel room. The two agreed to meet later that day with Bowland,
    the appellants friend, and K.D., the second complainant, at K.D.s apartment.
    They engaged in a variety of sexual activities, including unprotected anal
    penetration.

[8]

Shortly after that encounter, the appellant sent C.S. a text message
    stating that both he and the co-accused were HIV-positive. C.S. informed K.D.
    The complainants expressed their shock and concern and both went to the
    hospital that same night. They were given anti-viral treatment and took the
    drugs for four weeks. Neither man tested positive for HIV.

[9]

Neither the appellant nor Bowland testified at trial but they conceded
    that they had engaged in anal intercourse with the complainants, that they did
    not disclose their HIV-positive status, and that neither complainant knew that
    the appellant and the co-accused were HIV-positive.

[10]

The
    complainants testified that they would not have engaged in sexual activity with
    the appellant and Bowland had they known that both were HIV-positive. The
    appellant and Bowland attacked the credibility of the complainants and urged
    the jury not to accept their assertion that they would not have engaged in
    sexual activity with the appellant and Bowland had they known that they were
    HIV-positive.

[11]

The
    appellant and his co-accused sought and obtained, over the objection of the
    Crown, a pre-trial ruling pursuant to s. 276 of the
Criminal Code
, R.S.C. 1985, c. C-46,

permitting
    them to cross-examine both complainants on certain prior sexual conduct: see
R.
    v. Boone and Bowland
, 2012 ONSC 441. C.S. and K.D. were cross-examined and
    admitted to regularly having unprotected sex with each other, and to previously
    engaging in unprotected group sex with other men whose HIV status they did not
    know. There was also evidence that C.S. and K.D. were very aware of the risks
    posed by having sex with an HIV-positive partner and that they had themselves
    regularly tested for the disease.

[12]

The
    appellant argued at trial that, as the complainants were careless in their
    sexual lives and prepared to have sex with other men whose HIV statuses were
    unknown, doubt was cast on the credibility of their assertion that they would
    not have had sex with him, had they known of his HIV-positive status. The
    appellant also relied on the fact that C.S. himself had failed to disclose that
    he had syphilis before they had sex, indicating a disregard for the risks of
    engaging in sex with others who might be infected and knowledge that partners
    may be dishonest about their sexual health.

B.

ISSUES

[13]

The
    appellant raises the following four issues:

(1)

Did the trial judge err by
    failing to charge the jury that, if it found a possibility that the
    complainants were reckless or prepared to assume the risks of unprotected sex
    with someone whose HIV status is unknown, the jury must acquit?

(2)

Did the trial judge err in
    failing to give a
Vetrovec
warning in relation to the two complainants?

(3)

Did the trial judge make a 
Miller
error?

(4)

Did the trial judge err by
    failing to warn the jury that the appellants text messages should not be used
    as evidence of bad character to punish the appellant?

[14]

The
    respondent Crown submits that if any error is found on the above grounds of
    appeal, this court should apply the
curative proviso
. The respondent
    also submits that the trial judge erred by granting the appellants s. 276
    application which permitted the defence to adduce evidence of the complainants
    prior sexual conduct in order to assess whether or not the complainants would
    have consented to having unprotected sexual intercourse had they known that the
    appellant was HIV-positive.

C.

ANALYSIS

(1)

Did the trial judge err by failing to charge the jury that, if it found
    a possibility that the complainants were reckless or prepared to assume the
    risks of unprotected sex with someone whose HIV status is unknown, the jury must
    acquit?

[15]

In
R. v. Cuerrier
, [1998] 2 S.C.R. 371, the Supreme Court of Canada held
    that the failure to disclose a condition that poses a significant risk of
    serious bodily harm amounts to fraud that vitiates consent to sex. Writing for
    the majority, Cory J. explained, at para. 127:

Without disclosure of
    HIV status there cannot be a true consent. The consent cannot simply be to
    have sexual intercourse. Rather it must be consent to have intercourse
    with a partner who is HIV‑positive. True consent cannot be given if
    there has not been a disclosure by the accused of his HIV‑positive
    status. A consent that is not based upon knowledge of the significant
    relevant factors is not a valid consent.

[16]

Cory
    J. added, at para. 130:

In situations such as that presented in this case
    it must be emphasized that the Crown will still be required to prove beyond a
    reasonable doubt that the complainant would have refused to engage in
    unprotected sex with the accused if she had been advised that he was HIV-positive. As
    unlikely as that may appear it remains a real possibility. In the words of
    other decisions it remains a live issue.

[17]

R.
    v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584, affirmed the
Cuerrier
test and explained the element of significant risk of serious bodily harm in cases
    involving an HIV-positive accused with a low viral load.

[18]

In
    the case at bar, the Crown tendered expert evidence as to the risk of HIV transmission
    through unprotected receptive anal intercourse. No issue was raised in this
    case as to the sufficiency of the appellants viral load in relation to that
    risk.

[19]

As
    the appellant conceded that he had engaged in unprotected anal intercourse with
    the complainants, that he was HIV-positive at the time, and that he had not
    disclosed his HIV-positive status, the central issue at trial was whether the
    Crown had proved beyond a reasonable doubt that the complainants would have
    refused to engage in unprotected sex with him if they had been advised that he
    was HIV-positive. On that issue that the appellants trial counsel adduced
    evidence of the complainants past sexual behaviour to support an assertion
    that they were generally reckless and/or prepared to assume the risks of
    unprotected sex.

(a)

The proposed jury instruction

[20]

On
    appeal, the appellant argues that the trial judge erred by failing to instruct
    the jury properly on this issue. In his oral submission, Mr. Shime provided us
    with the following instruction that he submits the trial judge ought to have
    given:

If these factors [engaging in sex without knowing or asking
    about the health status of partners] lead you to believe that C.S. and K.D. may
    have been reckless or prepared to assume the risks that result from unprotected
    sex with someone whose status is unknown, then you must acquit as that means
    there exists a doubt for you to know that C.S. and K.D. would not have
    consented had they known.

[21]

In
    my view, this submission must be rejected.

[22]

The
    law imposed a positive duty on the appellant to disclose his HIV-positive
    status to the complainants before engaging in sex with them. The issue for the
    jury to decide was whether the Crown had proved beyond a reasonable doubt that
    the complainants would not have consented had they known of the appellants
    HIV-positive status, not whether they were prepared to risk having unprotected
    sex with someone whose HIV status they did not know. An instruction along the
    lines proposed by the appellant would be inconsistent with the law as laid down
    in
Cuerrier
and
Mabior
as it would

effectively remove
    the accuseds duty to disclose if the accused was having sex with a partner who
    had engaged in risky sex in the past. This would transform the accuseds duty
    to disclose into a duty on the complainant to inquire. It would, as the Crown
    contends, effectively limit criminal liability to situations where the
    complainant inquired about an accuseds HIV status but the accused was
    deceptive.

[23]

Nor
    am I convinced that any alleged carelessness or recklessness of the
    complainants was relevant to the issue that confronted the jury, namely,
    whether C.S. would have consented to have sex with the appellant had he known
    of his status. As I have stated, it is one thing to be careless or reckless
    about whether a risk exists and quite another to assume a known risk.

(b)

Section 276

[24]

This
    brings me to the s. 276 issue. It was not open to the Crown to appeal the trial
    judges s. 276 order since the appellant was convicted but, as I have noted,
    the Crown invited us to find that he erred in making that order. I would not
    ordinarily be inclined to accept such an invitation but I find it appropriate
    to comment on the s. 276 order for two reasons. First and foremost, the
    appellants submission as to the adequacy of the jury charge directly raises
    the relevance of the complainants prior sexual conduct, an issue that is also
    engaged under s. 276. Second, there are conflicting trial level decisions on the
    s. 276 issue and it is appropriate for this court to attempt to clarify the law.

[25]

Section
    276(1) of the
Criminal Code
provides that evidence of the
    complainants prior sexual activity is not admissible to support an inference
    that, by reason of the sexual nature of that activity, the complainant: (a) is
    more likely to have consented; or (b) is less worthy of belief. These
    prohibited inferences are known as the twin myths.

[26]

If
    the proposed evidence does not run afoul of this rule, an application judge can
    authorize admission of the evidence pursuant to s. 276(2) provided three
    conditions are met: it relates to specific instances of sexual activity; it is
    relevant to an issue at trial; and it has significant probative value not
    substantially outweighed by the danger of prejudice to the proper
    administration of justice, having regard to the factors outlined in s. 276(3).

(c)

The s. 276 pre-trial ruling

[27]

In
    his s. 276 ruling, the trial judge concluded that the proposed evidence suggested
    a pattern of casual sexual acts and was relevant to the issue of fraud
    vitiating consent. He found that the proposed evidence was capable of raising a
    reasonable doubt as to whether the complainants would not have consented to
    unprotected sex with the appellant had they known the appellant was
    HIV-positive, an essential element of the offence.

[28]

He
    summarized his reasons for granting the defence application as follows:

[61] Neither
    the gay lifestyle nor the sexual activity of the complainants are of interest
    in this trial. Rather, the focus is on risk associated with their
    conduct.  The defence refers to this as a non-sexual aspect. I
    agree. It is very specific.

[62] Given
    the evidentiary burden of the prosecution on the essential elements of the
    charges, the evidence the defence seeks to introduce is highly relevant and
    probative. The pattern of sexual encounters with strangers, as previously
    discussed, addresses the issues in this case and specifically the credibility
    of the complainants.

[63] The
    jury is entitled and, in my view, must hear this evidence so that a just
    verdict is rendered. As stated, an appropriate limiting instruction will
    focus the jury on the use of the evidence and, thereby, prevent the twin myths
    arising.

[64] Prejudice
    to the administration of justice would occur if this evidence was excluded.

[29]

With
    respect to the factors listed for consideration in s. 276(3), the trial judge
    found as follows, at para. 46:

a)  
    the evidence pertains to the issues in dispute and is necessary so that the
    jury may render a just verdict;

b)  
    the evidence specifically addresses risk and, as identified in the caselaw, is
    not concerned with the sexual component of the activity;

c)  
    it follows, then, that the jury can be directed to focus on the issues and
    purpose of the evidence so that there is no concern as to the twin myths, bias
    or discriminatory belief;

d)  
    similarly, sentiments as to prejudice, sympathy or hostility can be avoided;

e)  
    the complainants testified at some length as to intimate sexual acts and
    communicate in like manner, hence the concern as to their personal dignity and
    privacy is not an overriding concern;

f)  
    similarly, the complainants right to personal security and the full protection
    and benefit of the law is not impacted.

[30]

The
    respondent concedes that the appellant was entitled to a s. 276 order in
    relation to an inconsistent statement by K.D. as to his past sexual practice,
    but argues that otherwise, the order should not have been made.

(d)

The s. 276 jurisprudence in HIV non-disclosure cases

[31]

Like
    the trial judge in this instance, some other Ontario trial judges have found
    that a complainants history of unprotected sexual intercourse in the past is
    relevant to the issue of whether the complainant would knowingly consent to
    sexual intercourse if advised of this sexual partners HIV positive status. In
R.
    v. Pottelberg
(14 October 2010), London, 10628 (Ont. S.C.), Bryant J. came
    to a similar conclusion about the relevance of prior sexual conduct, as did Wong
    J. in
R. v. Poisson
(23 June 2015), Toronto (Ont. C.J.).

[32]

In
R. v. H.(J.)
, 2012 ONCJ 708, at para. 32 (a case dealing with
    non-disclosure of herpes simplex type 2), Green J. concluded that the defence
    proposal to call evidence of the complainants sexual hygiene behaviour and
    practices with others was not for the purpose of showing that the complainant
    was more likely to have consented to the sexual act underlying the charges and
    that it was probative of the issue whether the complainant would have consented
    had she been aware of her partners positive viral status:

Read literally, s. 276(1)(a) only renders evidence of the
    complainants prior sexual conduct inadmissible if it is being advanced to support
    an inference that,
by reason of the sexual nature of that activity,
the
    complainant is more likely to have consented to the sexual act at issue before
    the court. [Emphasis in original.]

[33]

However,
    three Superior Court judges have come to a different conclusion on this issue.
    In
R. v. Clarke
, 2013 ONSC 3232, another case in which the accused did
    not disclose his HIV-positive status, the complainant and the accused were
    involved in a sexual relationship for over two years. The Crown did not dispute
    the admissibility of evidence that the complainant continued to have sex with
    the accused after learning that they were both HIV-positive. The defence
    proposed to call additional evidence to establish a pattern of behaviour of
    risk acceptance on the part of the complainant. This included various incidents
    of engaging in unprotected sex with a number of individuals whose HIV status
    was unknown to the complainant. Skarica J. refused to make a s. 276 order on
    the ground that it did not follow that a person prepared to accept some form of
    unknown risk is also prepared to accept risk that is virtually certain to cause
    a life-threatening disease.

[34]

In
R. v. Ralph
, 2014 ONSC 1072, the accused was charged with aggravated
    sexual assault for HIV non-disclosure. Defence counsel sought to question the
    complainants about their sexual partners before and during their relationship
    with the accused, including the nature of the sexual activity, the use of condoms,
    if any, and the HIV status of those partners to counter the complainants claims
    that they would not have consented had they known the accuseds HIV-positive
    status. Spies J. considered the conflicting decisions in
Boone and Bowland
and
Clarke
. She preferred the reasoning in
Clarke
, concluding
    at para. 24, that apart from one question, questions about risky sexual
    behaviour were not relevant. She analogized the situation to people who skydive
    despite the risk of injury or death. If told that their parachute would
    malfunction and likely cause death, a person would not likely accept that risk.
    The fact that he or she had skydived before would not be relevant. (An inmate
    appeal from conviction and sentence on other grounds was dismissed by this
    court:
R. v. Ralph
(11 February 2016), Kingston, 59024 (C.A.)).

[35]

The
    trial judge did, however, allow the following question, which in her view, did
    not involve the prohibited inferences:

Before you knew you were HIV positive, had you ever
    engaged in sexual intercourse; either vaginal or anal or oral sex with someone
    that you
knew or believed to be HIV positive?




[36]

In
R. v. W.H.,
2015 ONSC 3087, also an aggravated sexual assault charge for
    HIV non-disclosure, Morgan J. followed
Clarke
and
Ralph
and
    refused a s. 276 application to introduce evidence of prior sexual conduct
    indicating a tolerance for risk. At para. 5, the trial judge referred to Spies
    J.s comments in
Ralph
, at para. 11, citing
R. v. Darrach
(1998), 122 C.C.C. (3d) 225 (Ont. C.A.), at para. 35:

The rationale for subsection 276(1) is to protect against
    prohibited inferences, namely the 'twin myths' that a sexually promiscuous
    woman is less worthy of belief, and that a sexually permissive woman is more
    likely to have consented to the sexual activity that forms the basis of the
    allegation because of her sexual history.[]

Morgan J. continued:

Putting it like this highlights how close the defenses
    proposed line of questioning is to the prohibited line of questioning. If we
    substitute the phrase risk-taking for promiscuous, we get to precisely the
    point the defense hopes to make: that a sexually risk-taking woman is more
    likely to have consented to the (high risk) sexual activity that forms the
    basis of the allegation because of her sexual history.

(e)

Evidence of prior sexual conduct is generally not relevant to the issue
    whether a complainant would have knowingly consented to unprotected sex with an
    HIV-positive accused

[37]

As
    Morgan J. put it in
W.H.
, at para. 10, the twin myths are prohibited
    not only as a matter of social policy but also as a matter of false logic. There
    is a material difference between accepting an unknown risk and accepting a
    known risk. Even if the complainants were reckless in their sexual behaviour,
    whether in the past or at the time of their sexual encounter with the
    appellant, this has no bearing on the issue whether they would have consented
    had they known of the appellants HIV-positive status.

[38]

A
    decision to engage in sexual activity is fraught with many risks among which
    the most serious is the risk of contracting a life-threatening condition. The
    risk that an individual is prepared to assume is highly dependent upon the
    circumstances. In my view, evidence of a complainants general disposition to
    expose himself to an unknown risk (i.e. by having casual unprotected sex) is
    simply not probative of whether or not a complainant would be willing to accept
    a serious known risk.

[39]

Moreover,
    the nature of the risk of unprotected sex with an HIV positive partner goes
    beyond the risk of bodily harm. An infected person must assume the legal
    obligation to disclose HIV status to all sexual partners and thereby faces
    consequent restrictions on future relationships.

[40]

As
Cuerrier
and
Mabior
hold, by imposing on one sexual partner a
    duty to disclose a condition that poses a serious risk to another, the law aims
    to vindicate and to protect the autonomy and dignity of the latter. The modern
    law of sexual assault respects each sexual partner as an autonomous, equal and
    free person:
Mabior
,
at para. 45. An individual is, as a matter of law, entitled to know that a
    significant risk of serious bodily harm exists so that he or she can take that
    risk into account before deciding whether to engage in sexual activity. Past
    carelessness or recklessness about an unknown but
possible
risk has no bearing upon
    whether an individual is to be believed when he asserts that he would not have
    assumed a
known
risk.

[41]

In
    both
Clarke
and
Ralph
, it was suggested that the risk posed
    by unprotected sex with an HIV-positive partner was a virtual certainty. The
    evidence in this case placed the risk well below certain infection. However, I
    find the basic reasoning in those cases and
W.H.
to be sound.

[42]

There
    may be cases where evidence that a complainant previously consented to
    unprotected sex
knowing
his or her partner to be HIV-positive may be
sufficiently
relevant to the determination of whether the complainant consented to the same
    risk with the accused. In my view, however, such cases will be rare. The trial judge
    must be satisfied that admission of the evidence would not invite the
    prohibited twin myth inferences. There are many factors, some rational and
    others not, that influence an individuals decision to give or to withhold
    consent to sexual relations in any particular situation. It does not
    automatically follow from a decision to consent to unprotected sex with one
    partner known to be HIV-positive that consent to unprotected sex with a
    different partner would be given in different circumstances.

[43]

The
    appellant argues that an exploration of the complainants carelessness or
    recklessness was the only way he could raise the defence that they would have
    consented had they known of his HIV-positive status.

[44]

Although
    it may be difficult for an accused to raise a reasonable doubt on this issue,
    that difficulty flows from the law. As Cory J. stated in
Cuerrier
when
    explaining this element of the offence, it is unlikely but possible that
    consent would have been given had the risk been known. There are many cases,
    among them sexual assault where consent is at issue, in which the accused is
    faced with incriminating evidence from a witness that is difficult to
    challenge. Such difficulties do not justify changing, bending or distorting the
    law to make it easier for the accused to raise a reasonable doubt. Nor do they
    justify admitting evidence that is not logically probative of the issue. Moreover,
    as this case demonstrates, even if it is difficult for an accused to directly
    challenge a complainants statement had I known I would not have consented,
    it is always open to an accused to challenge the complainants credibility in
    other ways by exposing prior inconsistent statements and general lack of
    veracity. In this case, the defence mounted a significant attack on credibility
    by using C.S.s failure to disclose his syphilis diagnosis, the inconsistent
    statements related to the criminal record and group sexual activity.

[45]

In
    this case, the pertinent s. 276(3) factors favoured excluding the evidence. The
    evidence had little if any relevance to the issue before the jury and the
    interests of justice, including the right of the accused to make a full answer
    and defence did not favour admitting it: s. 276(3)(a). There was no reasonable
    prospect that the evidence [would] assist in arriving at a just determination
    in the case: s. 276(3)(c). Allowing the defence to probe the complainants
    prior sexual behaviour would discourage the reporting of sexual assaults and
    would potential[ly cause] prejudice to the complainants personal dignity and
    right of privacy: ss. 276(3)(b) and (f).

[46]

I
    conclude, accordingly, that the trial judge erred in making a s. 276 order in
    the circumstances of this case. However, that error inured to the benefit of
    the appellant and the trial judge did not err by failing to instruct the jury
    in the manner proposed by the appellant.

(2)

Did the trial judge err by failing to give a
Vetrovec

warning
    in relation to the two complainants?

[47]

At
    trial, the appellant and Bowland mounted a concerted attack on the credibility
    of the complainants based on prior inconsistent statements and collusion. C.S.
    had lied at the preliminary inquiry about his criminal record. K.D. had lied at
    the preliminary inquiry about his involvement in group sex. They had destroyed
    relevant text messages and they admitted discussing their evidence before and
    during the trial.

[48]

The
    appellant submits that, as C.S. and K.D. were essential witnesses for the
    Crown, the trial judge was required to give a full
Vetrovec
warning,
    cautioning the jury that it would be dangerous to convict unless their version
    of events was supported by other evidence: see
Vetrovec v. The Queen
,
    [1982] 1 S.C.R. 811.

[49]

I
    disagree.

[50]

As
    the Crown points out, despite the problems with their evidence, the
    complainants did not bear the hallmarks of classic
Vetrovec
witnesses.
    They were not jailhouse informants, accomplices, nor did they stand to benefit
    in any way from their testimony. The frailties of their evidence were apparent.
    Counsel addressed those frailties in their closing submissions as did the trial
    judge in his charge to the jury. The trial judge also specifically instructed
    the jury on C.S.s criminal record, the prior inconsistent statements of both
    complainants, and collusion. He highlighted the need to analyze their evidence
    carefully.

[51]

A
    trial judge has a discretion whether to give
Vetrovec
warning and as
    to the nature and extent of the warning. The exercise of that discretion is
    entitled to deference and should be given wide latitude on appeal:
R. v.
    Van Every
, 2016 ONCA 87, at para. 73;
R. v. Bevan
, [1993] 2
    S.C.R. 599, at p. 614;
R. v. Brooks
, [2000] 1 S.C.R. 237, at paras.
    1-2 and 24. In my view, the trial judge did not exceed the limits of that
    discretion in the circumstances of this case.

[52]

A
Vetrovec
caution is not made mandatory simply because the
    complainants evidence was essential to the Crowns case:
R. v. A.W.B.
,
    2015 ONCA 185, 322 C.C.C. (3d) 130, at para. 42;
R. v. Carroll
, 2014 ONCA 2, 304 C.C.C. (3d) 252, at
    para. 74, leave to appeal refused, [2014] S.C.C.A. No. 193.

[53]

In
    his charge, the trial judge canvassed with the jury the basis for the attack on
    the credibility of the complainants. The trial judge held a pre-charge
    conference to afford counsel the opportunity to comment on his proposed charge.
    The appellants trial counsel did not object to the manner in which the trial
    judge proposed to deal with the evidence of the complainants nor did he request
    a
Vetrovec
warning. Although not fatal on its own, the absence of any
    objection leads to an inference that the language employed by the trial judge
    was appropriate from the perspective of the accused:
R. v. Khela
, 2009
    SCC 4, [2009] 1 S.C.R. 104, at paras. 49-50;
Brooks
, at paras. 18-19;
R. v. Jacquard
, [1997] 1 S.C.R. 314, at p. 339.

(3)

Did the trial judge make a 
Miller

error?

[54]

The
    appellant submits that in three separate passages in his jury charge, the trial
    judge instructed the jury that it should base its verdict on evidence it
    accepted. This, says the appellant, confined the jurys attention to the
    evidence it accepted and precluded it from considering all the evidence as a
    whole in its deliberation, contrary to the direction in
R. v. Miller
(1991), 5 O.R. (3d) 678 (C.A.).

[55]

All
    three impugned passages were taken directly from
Watts Manual of Criminal
    Justice Instructions
, 2d ed. (Toronto:
    Carswell, 2015)
.
The appellants trial counsel raised no
    objection to them. I do not agree that they amounted to a direction to examine
    the evidence in two separate stages or to consider the evidence in a piecemeal
    fashion. When explaining reasonable doubt, the trial judge properly instructed
    the jury to consider all the evidence and, in the
W.D
. portion of
    the charge, that the appellant was entitled to an acquittal if evidence the
    jury did not accept left it with a reasonable doubt. When the charge is read as
    a whole, there is no danger that the impugned comments could have skewed the
    jurys full and proper consideration of all the evidence when concluding that
    the Crown had proved its case beyond a reasonable doubt.

(4)

Did the trial judge err by failing to warn the jury that the appellants
    text messages should not be used as evidence of bad character to punish the
    appellant?

[56]

The
    Crown tendered a series of text messages from the appellant including one in
    which he expressed a desire to infect others with HIV. As the appellant had
    conceded that he was HIV-positive and that he had not disclosed his status, his
    trial counsel submitted to the jury that this evidence was irrelevant. The
    Crown argued that the text messages showed the appellants dishonest purpose.
    The trial judge did not refer to the text messages in his charge.

[57]

The
    appellant submits that the trial judge erred by failing to warn the jury that
    the text messages were of no assistance on the critical issue and that the jury
    should not use the text messages as evidence of bad character to punish the
    appellant.

[58]

In
    my view, it would have been preferable had the trial judge given the jury a
    limiting instruction on the use it could make of the text messages.

[59]

However,
    no such instruction to the jury was requested by the appellants trial counsel
    and I am not persuaded that, in the context of this case, the trial judges
    failure to give a specific cautionary instruction on the text messages amounted
    to an error of law that affected the fairness of this trial.

D.

Disposition

[60]

For
    these reasons, I would dismiss the appeal.

Released: March 29, 2016

Robert J. Sharpe
    J.A.

I agree M.L. Benotto
    J.A.

I agree Grant
    Huscroft J.A.


