



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. MRS, 2020 ONCA 667

DATE: 20201023

DOCKET: C67415

Paciocco, Nordheimer and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

MRS

Appellant

James
    Lockyer and Craig Zeeh, for the appellant

Tanya M. Kranjc,
    for the respondent

Heard: September
    10, 2020 by video conference

On appeal
    from the convictions entered by Justice Carole J. Brown of the Superior Court
    of Justice, sitting with a jury, on March 8, 2019.

Paciocco
    J.A.:

OVERVIEW

[1]

The appellant, MRS, was convicted by a jury of
    charges involving the sexual and physical abuse of his spouse, SS. He was also
    convicted of charges involving the physical abuse of his two male children, BS
    and TS. In addition to evidence about the specifically charged allegations, evidence
    of other extrinsic misconduct by the appellant was presented during the trial.

[2]

The appellant appeals his convictions. I will
    address two of the grounds of appeal that he raises.

[3]

First, the appellant contends that the trial
    judge erred in failing to direct the jury against cross-count reasoning between
    counts involving the same complainant, and cross-count reasoning between counts
    involving different complainants. He also contends that the trial judge erred
    by failing to give the jury a limiting instruction relating to the charged and
    uncharged misconduct. For the following reasons, I would allow the appeal on this
    ground and order a new trial.

[4]

Second, the appellant argues that the trial
    judge erred by giving on overlong and needlessly complicated jury charge.
    Although I share many of the concerns raised by the appellant, since a new
    trial will be required in any event, I need not decide whether the trial judge committed
    the error of giving an ineffective jury charge. I will, however, offer brief
    comments on this ground of appeal.

MATERIAL FACTS

[5]

The relationship between the appellant and SS
    began in 1998. For most of their relationship, the appellant and SS lived
    separately. They had three children while living apart. Those children, BS, TS
    and MS, lived with SS, who moved frequently. In 2011, the appellant moved in
    with SS and their children. The appellants daughter from another relationship
    also came to live with them. In 2013, they moved into a home where the
    appellants mother and brother also lived. BS moved out of the home in 2015. SS
    and her remaining children soon followed. They left the home on November 11,
    2015, ending the relationship after 17 years.

[6]

Shortly after the appellant and SS separated, the
    police were contacted as the result of a statement made by the appellants
    daughter, MS, then 11-years of age. SS and the three children were interviewed.
    When interviewed, SS said nothing about abuse that she had suffered from the
    appellant.

[7]

On May 20, 2016, after SS commenced family court
    proceedings and a civil suit against the appellant arising from a family business
    venture, SS made physical and sexual abuse allegations against the appellant to
    the police. Thirteen charges were laid, capturing allegations made by SS and
    the children.
[1]

[8]

During the trial on those charges, the younger
    two children, TS and MS, testified using closed circuit television. Prior statements
    that they had made to police were admitted into evidence pursuant to s. 715.1
    of the
Criminal

Code
.

[9]

The appellant testified in his defence and contends
    that all the allegations against him are false. The appellants position is
    that all the charges have been orchestrated by SS.

A.

Charged Allegations Involving SS

[10]

The charged allegations commenced in the period
    between 2000 and 2002. The jury convicted the appellant of assaulting SS during
    that period, contrary to s. 266(a) of the
Criminal

Code
,
    and of attempting to choke her with his hands, contrary to s. 246(a) of the
Criminal

Code
: counts 6 and 7. SS testified that during this period the
    appellant would interrogate her about sexual relationships he suspected. In one
    such session, the appellant ran across the room, pulled her hair, hit her and
    choked her into unconsciousness. During the assault, SS urinated herself.
    Shortly after the assault, the appellant told her he had been thinking about
    where he would leave her body.

[11]

As the result of an alleged event in 2010, the
    appellant was also convicted of an additional count of assaulting SS, this time
    by smashing her head on a staircase: count 8. He was also convicted of choking
    her, again into unconsciousness, during the same incident: count 9. SS
    testified that this attack occurred after she found photos of female sex
    workers that had been taken in the appellants condominium with his camera. She
    had googled a number used to repeatedly call the appellant and it was from
    back pages ads, a service that advertises sex for sale. This attack occurred
    after she confronted him about trafficking girls.

[12]

The appellant was also convicted of anally
    raping SS in 2012 or 2013, after she told him that he could no longer hit her
    because her injuries would be visible when she went to work at the store: count
    11.

[13]

As well, he was convicted of an assault causing
    bodily harm in 2015 based on testimony by SS that he punched and kicked her
    into unconsciousness in a vicious beating that left her unable to move for days:
    count 12. He was also convicted of another count of sexually assaulting SS based
    on her testimony that later that same evening he anally raped her to punish her
    for pushing him even though he had given [her] everything: count 13.

[14]

The appellant was acquitted of one assault count
    involving SS: count 10. SS testified that in the spring of 2013, the appellant
    pulled on her hair while she slept in her daughters room, told her to get up, took
    her to his car, and drove her to an unknown park before demanding that she
    empty her pockets and start walking. She said he ultimately relented and drove
    her home (the park incident). The jury learned that prior to the trial, when
    telling a friend about this incident, SS had only described being verbally
    coerced into the car, without mentioning any physical force. The jury returned
    a not guilty verdict.

B.

Charged Allegations Involving BS

[15]

The appellant was convicted of three assault-based
    offences against his oldest son, BS.

[16]

The first conviction related to a broken finger BS
    presented with at hospital in 2008. SS testified that the appellant broke BSs
    finger on that occasion by putting the 9-year-olds hand on a table and bringing
    his closed fist down on it forcefully. Although BS described the broken finger
    occurring years later when he was defending himself as the appellant repeatedly
    punched him in the face, the jury convicted the appellant on the charge that
    this assault occurred on or about the 28
th
day of October in the
    year 2008: count 1.

[17]

The second conviction of the appellant relating
    to BS was for assaulting him with a weapon between June 2011 and June 2013,
    namely a belt, contrary to s. 267(a) of the
Criminal

Code
:
    count 3. BS testified to being beaten with a belt for being too loud upon
    returning from a birthday party [the birthday party incident].

[18]

The third conviction relating to BS arose from
    an assault alleged to have occurred in 2015: count 5. BS testified that upon
    returning home late one night, the appellant dragged him into the kitchen, punched
    him to the ground and choked him.

C.

CHarged Allegations Involving TS

[19]

The appellant was convicted of two counts of
    assaulting TS with a weapon. The first conviction was for assaulting TS with a
    belt between June 2011 and June 2013: count 2. Evidence was presented of
    beatings with a belt during this period, including once during the birthday
    party incident when BS was also beaten with a belt.

[20]

The second conviction for assaulting TS with a weapon
    was on a charge that alleged that the appellant assaulted TS with a broomstick or
    a belt between June 2013 and September 2015: count 4. Evidence of the
    broomstick and belt assaults related to different incidents. TS testified that
    after returning from ice skating he was instructed to remove his clothes and was
    struck with a belt on his back, leaving welts. On another occasion, the
    appellant told TS to take off his shirt and then hit him with a broomstick.

D.

Uncharged discreditable conduct evidence

[21]

In addition to evidence about the charged
    criminal allegations, evidence was presented of discreditable conduct by the
    appellant. No issues were raised regarding the admissibility of any of this
    evidence as it was called.

[22]

A good deal of evidence was presented that the
    appellant engaged in uncharged criminal activity. SS testified that when she
    met the appellant she was attracted to the allure of money and knew he was
    selling drugs. She testified that he had thousands of dollars, and that she had
    seen drugs in his possession. When she asked him where he got the money, he
    told her to mind her own business.

[23]

As indicated, the jury learned, during the
    narration of the 2010 assault and choking charges, that the appellant was allegedly
    trafficking sex workers.

[24]

During the cross-examination of SS, defence
    counsel confronted SS with an incident where she called the police on the
    appellant, claiming he had a gun. He was charged but the charges were dismissed
    after SS made herself unavailable for trial.

[25]

When asked whether there were times when she did
    not see the appellant during the period that they were living apart, she replied
    that during one period she did not see him because he was in jail.

[26]

SS provided extensive evidence relating to
    uncharged violent conduct by the appellant. Some of this evidence related to
    violence against BS and TS. She said the appellant slapped BS when BS was 5
    months old for crying while the appellant was changing him. In addition to
    describing specific acts of violence against BS and TS, SS estimated that the
    appellant assaulted BS at least ten times after the family moved in with BSs mother
    and brother. She described TS being assaulted as well, but not as often.

[27]

Most of the evidence offered by SS relating to
    uncharged conduct involved allegations of violence against her, which she
    described as a constant feature of their relationship. She described how, early
    in their relationship, the appellant began to subject her to marathon
    interrogation sessions. In a good year, such interrogations would occur two
    or three times, sometimes accompanied by assaults. She estimated that she would
    be assaulted a couple of times a year. He would choke her every time, that
    was his thing. She said that many times she was left with bruising on her
    neck.

[28]

The jury heard of one specific uncharged
    incident of note that I will return to below. In her testimony in-chief, SS
    recalled a physical altercation at some point between 2001 and 2005 that left
    her with two black eyes and led to someone calling the Childrens Aid Society
    (the black eyes incident).

[29]

Even leaving aside the physical assaults, SS described
    a disturbingly abusive relationship. When asked about incidents that occurred
    while she was living at a specified address (between 2005 and 2011) she said,
    Im stuck on the really bad things that happened. Like there was a million, and
    described occasions when he would repeatedly wake her while she tried to sleep.

[30]

SS described how the appellant controlled her
    throughout their relationship. From the beginning of the relationship he had a
    rule prohibiting her from having visitors in the house and threatened to kill
    her if she ever had a relationship with another man. The control got to the
    point where she described the appellant as being her pimp in a different way
    because he took the money that she made in the family business. She testified
    that after the family moved in with the appellants mother and brother, she was
    a virtual prisoner, needing permission to leave the house, and was denied
    access to a cell phone, a bank account and money.

[31]

The children also gave general evidence about
    violence in the home involving them and their mother. TS testified that after
    the family moved to the home that they lived in from 2011 to 2013, the
    appellant became increasingly violent, often punching BS, and sometimes hitting
    TS and BS with a belt.

[32]

BS also testified to an uncharged incident
    between 2011 and 2013 when the appellant struck him on the leg with a coat
    hanger for being late for school. He also said that on one occasion the
    appellant punched him so hard that his cornea was displaced.

[33]

BS testified that when they moved in with the
    appellants mother in 2013 the appellant become more violent, hitting him
    regularly, and that the appellants mother encouraged the appellant to do so. He
    estimated that, on average, someone in his family was assaulted four times a
    week during this period.

[34]

MS testified that the boys were beaten on several
    occasions with their pants off, and SSs mother testified to seeing SS with
    bruises on her face and seeing her moving stiffly.

[35]

In submissions to the jury, the Crown presented the
    charges as part of a larger narrative of an abusive household. In her opening
    statement, the Crown told the jury that they would hear about how the appellant
    abused SS emotionally, sexually and physically during the 15 years that they
    were in a relationship and that he abused their two sons and impacted their
    daughter who was a witness to the abuse. The jury closing began from the same
    theme: [SS] and her children endured years of abuse at the hands of [the
    appellant].

E.

The JURY CHARGE

[36]

During the pre-charge conference, the Crown
    advised the trial judge that she was not going to be asking the jurors to look
    at similar fact. She raised the potential need for a prior discreditable
    conduct caution in relation to the acquittal on the gun charge in case it became
    a concern, but stated that things like the [black eyes incident] thats not a
    count on the indictment; its just part of the narrative." She said, I
    dont know if it would fit as prior discreditable conduct  Because Im not
    asking them to look at that and draw a conclusion that because they believed
    this, they should believe another count on the indictment.

[37]

Defence counsel later raised the issue again, stating,
    I agree with my friend that it should be a limiting instruction  A limiting
    instruction. You know, they cant - they cant accept the evidence that
    something is not on the indictment for - as propensity for that something else
    occurred. Defence counsel did not ask for any further instructions relating to
    discreditable conduct evidence.

[38]

During her closing submissions, the Crown told
    the jury that she was not asking them to consider the allegation about the gun.
    She said that this was not evidence that the Crown could lead, and that it was
    prejudicial: Dont use that to convict [the appellant] of any of these later
    offences. She then noted that they had heard about other incidents that are
    not on the indictment, such as the black eyes incident. She said of this incident,
    [t]his evidence is useful to you to understand the lengths that [SS] was going
    to hide what was happening to her by making up excuses.

[39]

The trial judge gave an elaborate jury charge
    that took 192 pages to transcribe. It was delivered over more than five hours.

[40]

After covering the familiar preliminary matters
    relating to the duties of jurors and the presumption of innocence, the trial
    judge discussed general principles relating to the evaluation of evidence,
    including the use that could be made of the appellants criminal record, which
    was disclosed to the jury when the appellant testified, pursuant to s. 12 of
    the
Canada

Evidence

Act
, R.S.C. 1985, c. C-5.
    The trial judge told the jury not to use the criminal record to infer that the
    appellant is the sort of person who would commit the offences charged, and
    that they should use those convictions solely in deciding how much or how
    little of his testimony they will believe.

[41]

The trial judge then embarked on an 84-page
    witness-by-witness recitation of the testimony provided during the trial. This
    recitation repeated much of the testimony the witnesses had provided about
    uncharged conduct, including the appellants slapping of baby BS; his drug
    trafficking activities; his control of SS; her knowledge of what he was
    capable of; that he did not like her body when she was pregnant; that when TS
    was born he told her TS was ugly; that she knew he had been unfaithful; her
    being black and blue in the face that led to a CAS visit (the black eyes
    incident); the marathon interrogation sessions; the discovery of proof that he
    was trafficking girls; that he was controlling her and pimping her in a
    different way; that, when they moved in 2013, BS was being hit a lot and things
    had got really bad for the boys; the gun incident; that MS was traumatized by
    the things she saw in the house; that the appellant wanted SS to abort TS and MS;
    and that BSs cornea was displaced by a punch from the appellant. In the course
    of this witness-by-witness summary, the trial judge also repeated the testimony
    given by witnesses about the charged offences.

[42]

Over 69 further pages, the trial judge then gave
    a charge-by-charge direction, identifying evidence specifically relevant to
    each count. In describing the charges, the trial judge provided complete jury
    instructions on each element of the charged offences. This included detailed instructions
    on the meaning of intention to assault, and consent to the assaults and sexual
    assaults, matters that were not at issue in this case.

[43]

In the course of this extensive instruction, the
    trial judge said nothing about cross-count reasoning or limitations on the use
    of discreditable conduct evidence, other than the criminal convictions.
    Included in the jury direction was the usual instruction to arrive at a
    decision from all the evidence given in this courtroom. Without
    qualification, that admonition was mentioned on nine occasions during the jury
    charge.

F.

THe Jury questions

[44]

While deliberating, the jury asked three
    questions. Two are relevant to the grounds of appeal that I will address.

[45]

The first such question pertains to counts 6 and
    7, which allege an assault against SS and an attempt to choke her while she was
    living at a specified address:

The charges [counts 6 and 7] have the same
    date range, between January 1, 2000 and July 1, 2002. We have heard in evidence
    that [SS and BS] moved to [address B] in 2001.

Q. The charge is also specific to [address A].
    Can we consider evidence that exists outside of [address A] but inside the date
    range? Are the two exclusive or linked? Are dates and addresses of no material
    value and we are simply to focus on evidence within the general time and
    location specified?

[46]

The trial judge took the view that since the
    jury had already been told that time and location were not material to their
    deliberations, the jury should simply be told to focus on the evidence. However,
    defence counsel described the question as concerning because obviously theres
    no similar fact application between counts. The trial judge said she did not
    see anything about similar fact evidence in the jury question.

[47]

After reviewing the question again in light of
    defence counsels submissions, the trial judge answered the question. She told
    the jury that counts 6 and 7 related to the allegation that the appellant
    assaulted and choked SS after interrogating her, and that this allegation was
    what they were to focus on: All of the evidence that there may be related to
    those, to that one incident. And I believe for that one incident it would
    really only be the testimony of [SS] and [the appellant].

[48]

Shortly after, the trial judge brought the jury
    back in and added that the dates and addresses were not material. At this point,
    one of the jurors asked the trial judge for further clarification:

The question from the Jury is whether or not
    we are supposed to focus on the evidence in totality only in relation to [the
    appellant] and [SSs] testimony on an event, or whether we are looking at the
    totality of the full date range of that charge?  I guess in essence, are we re-writing
    the charge if we consider evidence outside of the specific information that you
    have directed us to you [sic] in your charge?

[49]

The trial judge accepted the jurors offer to
    put the question in writing. After the jury retired to do so, defence counsel
    said, Well, I think, this is my concern [that it is a] similar fact issue. He
    said, I think there should be an instruction that its only related to the evidence
    on that, for that one occasion that you cant consider evidence on other
    occasions. After the Crown agreed and made a further suggestion, defence counsel
    responded, Yeah. But I think that there should be something said that, you
    know you cant take one count, evidence from one count to conclude on another
    count.

[50]

The trial judge proposed a response, but before
    it was delivered the jury indicated that it no longer required an answer to the
    question. When the trial judge asked if the jury should nonetheless be brought
    back on the similar fact evidence issue, defence counsel said that they should
    be because implicit in the question was this issue thats obviously a live
    issue. The Crown agreed, offering that the jury was hung up on the off the
    count information around the events at a particular address.

[51]

The trial judge brought the jury back in and
    then instructed them as follows:

And I will tell you that as regard count six
    and seven, the evidence to be considered is only the evidence related to the
    event, or the incident in question which was that incident about the
    interrogation and [the appellant] coming across the room and choking and
    hitting [SS], that was [the] urination issue. And if that didnt, and then so
    it would be the, all of the evidence, [SSs] and [the appellants] related to
    that incident. So, and we just wanted to, I would like to emphasize no other
    evidence outside the evidence related to that incident is to be considered, and
    no evidence say for instance which may suggest that [the appellant] may have
    been more likely to commit the offence related to the incident Ive just
    described again, is to be considered.

[52]

The second question of relevance that the jury
    asked related to the charge that the appellant was ultimately acquitted on, the
    park incident. The jury asked whether verbal coercion would constitute force
    for the assault charge. The trial judge answered no and explained what force
    entailed.

THE ISSUES

[53]

Two issues raised by the appellant warrant
    attention:

A.

Did the trial judge err by failing to instruct the jury not to
    engage in cross-count reasoning and by failing to give a limiting instruction
    against a general bad character inference (a propensity instruction)?

B.

Did the trial judge err by giving an ineffective jury charge?

[54]

As indicated, I would allow the appeal on the
    first ground and order a retrial. While I need not decide whether the trial
    judge erred on the second ground, I will offer brief comments relating to this ground.

[55]

The appellant raised a third ground of appeal,
    that the trial judge erred by giving an insufficient charge on the use of the
    evidence of the child witnesses, TS and MS, the appellants son and daughter,
    admitted pursuant to s. 715.1 of the
Criminal

Code
, including
    by failing to caution the jury against undue emphasis when permitting the jury
    to have the s. 715.1 videos and related transcripts in the jury room during
    deliberations. Given that I would order a new trial in any event, I will not
    address the s. 715.1 ground of appeal.

A.

Did the trial judge Err by failing to give
    cross-count reasoning instructions and a propensity instruction?

[56]

The trial judge should have instructed the jury
    not to engage in cross-count reasoning between counts involving different
    complainants, or counts involving the same complainant. She erred by not doing
    so.

[57]

The trial judge also erred in failing to
    provide a limiting propensity instruction directing the jury, when considering each
    charge, not to rely on the evidence of other counts or other uncharged
    misconduct as proof that the accused is the sort of person who would commit the
    offence or offences charged:
R. v. M.(B.)
(1998), 130 C.C.C. (3d) 353
    (Ont. C.A.), at para. 42.

(1)

The Similar Fact Evidence Rule

[58]

The similar fact evidence rule gives rise to
    the jury directions that have just been described. It serves two functions.

[59]

First, the similar fact evidence rule is meant
    to prevent triers-of-fact from drawing the inference that the accused is the
    kind of person likely to have committed the offence charged. For clarity, I
    will describe this component of the similar fact evidence rule as the rule
    against general bad character. The rule against general bad character is
    enforced in two ways. Evidence called by the Crown which shows
only

that
    the accused is the type of person likely to have committed the offence in
    question is inadmissible (emphasis in original):
R. v. G.(S.G.)
,
    [1997] 2 S.C.R. 716, at para. 63, citing
R. v. B.(F.F.)
, [1993] 1
    S.C.R. 679, at p. 730. In addition, the rule against general bad character prohibits
    triers of fact from using evidence that has been admitted for other purposes,
    but that also reveals the bad character of the accused, to infer that the
    accused is the type of person likely to have committed the offence in question.
    Binnie J. described this component of the rule in
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908, at para. 72:

Proof of
general
disposition is a
    prohibited purpose. Bad character is not an offence known to the law.
    Discreditable disposition or character evidence, at large, creates nothing but
    moral prejudice and the Crown is not entitled to ease its burden by
    stigmatizing the accused as a bad person. [Emphasis in original.]

[60]

The moral prejudice that Binnie J. was
    referring to when describing the prohibited general bad character inference arises
    from the risk that ascribing morally repugnant acts to the accused will cause
    triers of fact to infer guilt based on the forbidden chain of reasoning from
general
disposition (emphasis in original), rather than the specifically relevant
    evidence that they committed the offence charged:
Handy
, at para. 139;
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 71-72. Bad
    character evidence also raises the risk that a jury may wish to punish the
    accused by convicting them of offences because of their other misconduct:
R.
    v. D.(L.E.)
, [1989] 2 S.C.R. 111, at p. 128; see also
R. v. Chamo
t
,
    2012 ONCA 903, 302 O.A.C. 104, at para. 62.

[61]

The second function of the similar fact evidence
    rule is to govern the admissibility of bad character evidence called by the
    Crown where that evidence is not barred by the rule against general bad character.
    As an exception to the rule against general bad character, evidence that goes
    beyond the prohibited inference and has relevance for other, proper purposes
    may be admitted pursuant to the similar fact evidence rule, but, once admitted,
    that evidence is to be used solely for those proper purposes and not for the
    prohibited inference:
D.(L.E.)
, at pp. 120, 128. The test that is used
    to ensure that bad character evidence does more than invite the prohibited
    inference and is worth hearing despite the risk of prejudice it presents was
    described authoritatively by Binnie J. in
Handy
, at para. 55:

Similar fact evidence is presumptively
    inadmissible. The onus is on the prosecution to satisfy the trial judge on a
    balance of probabilities that in the context of the particular case the
    probative value of the evidence in relation to a particular issue outweighs its
    potential prejudice and thereby justifies its reception.

[62]

Despite the common practice of referring to
    similar fact evidence and the similar fact evidence rule, the rules just
    described are not confined to situations where the bad character evidence
    reveals conduct that is similar with conduct alleged in the charged event:
R.
    v. B.(L.)
(1997), 116 C.C.C. (3d) 481 (Ont. C.A.), at paras. 6, 17, 31-39,
    leave to appeal refused, [1997] S.C.C.A. No. 524. Both the rule against general
    bad character and the rule requiring probative value to outweigh prejudice operate
    in any case where the evidence is of conduct of the accused that is sufficiently
    discreditable that it may prejudice the trier of fact against the accused:
B.(L.)
,

at para 20. This broad application is supported by the purpose underlying the
    similar fact evidence rule. Bad character evidence that is of a highly prejudicial
    nature has the capacity to attract the prohibited inference that the accused
    is the type of person likely to commit the charged offence:
B.(F.F.)
,
    at p.735.

[63]

Moreover, the application of the similar fact
    evidence rule is not confined to extrinsic evidence of bad character unrelated
    to charged offences. Where more than one offence is charged on the same
    indictment or information (a multi-count indictment), evidence offered to
    prove that the accused committed any one of the charged offences may also reveal
    the bad character of the accused. The similar fact evidence rule therefore
    holds that [e]vidence on one count can be admissible on another if it meets
    the test for the admission of similar fact evidence, but not otherwise:
R.
    v. T.C.
, 2019 ONCA 898, 383 C.C.C. (3d) 341, at para. 48;
R. v. Poulin
,
    2017 ONCA 175, 346 C.C.C. (3d) 191, at paras. 39-40.

[64]

To be clear, things are different when assessing
    the credibility of witnesses who testify on multiple counts:
R. v. P.E.C.
,
    2005 SCC 19, [2005] 1 S.C.R. 290. The assessment of the credibility and reliability
    of a witnesss testimony on one count may properly inform the assessment of the
    credibility and reliability of that witnesss evidence on any or all counts.
    However, the substantive testimony that a witness gives about one count cannot
    be used as affirmative evidence to assist in proving that the accused is guilty
    of any other count unless a finding has been made that the similar fact
    evidence rule has been satisfied.

[65]

One final point about the operation of the
    similar fact evidence rule that arises in this appeal. Recall that, in
    describing the similar fact evidence rule, Binnie J. began by stating that similar
    fact evidence is presumptively inadmissible:
Handy
, at para. 55. In
    other words, we start from the position that the Crown cannot present highly
    prejudicial extrinsic character evidence or use highly prejudicial character
    evidence, already admitted for other purposes, as proof of the guilt of the
    accused, unless the Crown shows that the exclusionary presumption under the similar
    fact evidence rule has been overcome. As a result, and because r. 30 of the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
, SI/2012-7,
    so requires, the Crown must bring an application at trial seeking to admit
    similar fact evidence, or to use evidence admitted to prove one count as proof
    of guilt on another count:
R. v. Nolan
, 2019 ONCA 969, 150 O.R. (3d)
    647, at para. 35;
R. v. Tsigirlash
, 2019 ONCA 650, at paras. 23-27;
T.C.
,
    at para. 58.

[66]

A trial judge will therefore err by admitting
    bad character evidence that is not admissible under other rules of evidence, or
    by permitting similar fact inferences to be drawn from bad character evidence that
    has been admitted for other purposes where there has not been a similar fact
    evidence application and an admissibility ruling. However, such errors will not
    be fatal on appeal if the evidence would have been admissible as similar fact
    evidence to support those inferences and the accused had a meaningful
    opportunity at trial to respond to the use to which the evidence was put:
Nolan
,
    at para. 41,
T.C.
, at paras. 55, 59.

(2)

Similar Fact Evidence Jury Directions in
    Multi-Count Indictment Cases

[67]

As a general proposition, 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:
Chamot
, at para. 62. This proposition applies to prejudicial
    evidence relating to the bad character of the accused, including in multi-count
    indictment cases.

[68]

Two cautions are required. First, where there is
    a real risk that the jury could rely on evidence properly admitted on one count
    as proof that the accused committed an offence alleged in another count, and
    there has not been a similar fact evidence ruling permitting such use, a
    direction not to engage in cross-count reasoning is to be provided.
    Specifically, jurors must be instructed to consider each charge separately and
    not to use evidence relating to one count as evidence on any of the other
    counts:
M.(B.)
, at para. 41;
R. v. Rarru
, [1996] 2 S.C.R.
    165, at para. 1.

[69]

Second, in multi-count indictment cases,
    regardless of whether the trial judge has ruled that cross-count reasoning is
    permissible pursuant to the similar fact evidence rule, where there is a real
    risk that the jury may draw the prohibited inference, a limiting instruction is
    to be provided. The jury must be told to use the evidence for the purpose for
    which it was admitted, and not to rely on the evidence of other counts
or
    other uncharged misconduct
as proof that the accused is the sort of person
    who would commit the offence or offences charged (emphasis added):
M.(B.)
,
    at para. 42.

(3)

Analysis: The Jury Charge and the Appellants
    Character

[70]

The trial judge failed to give either of the two
    jury directions just described. The Crown acknowledges that it would have been
    preferable had the trial judge done so, but offers reasons why the charge was nonetheless
    adequate in the circumstances of the case. I disagree. For the reasons below, I
    would reject the Crowns submissions and find that the trial judge erred in failing
    to provide a cross-count direction and a limiting instruction.

[71]

In fairness to the trial judge, she was not
    provided with the kind of assistance one would hope for from trial counsel. The
    Crown took the position that the only discreditable conduct concern related to
    the evidence, raised by the appellant, of the gun incident for which the
    appellant was acquitted. In fact, as I have described, the case was laden with prejudicial
    bad character evidence that triggered the operation of the similar fact
    evidence rule. Together that evidence showed the accused to be a violent,
    abusive bully who habitually terrorized his family. This was precisely the kind
    of evidence that would invite the prohibited inference, and [e]vidence that imparts
    a forbidden propensity engages the rule:
R. v. Gareau
, 2016 NSCA 75, 342
    C.C.C. (3d) 462, at para. 45.

[72]

The Crown also suggested that evidence it called
    as narrative and not as proof of guilt may not fit as discreditable
    conduct. This is not correct. Whether evidence constitutes discreditable
    conduct evidence triggering the similar fact evidence rule is determined by the
    nature of the evidence, not the use the Crown proposes for that evidence. Where
    prejudicial bad character evidence unrelated to a charge being prosecuted is
    offered, the similar fact evidence rule is engaged, whether that evidence forms
    part of the narrative or not:
Gareau
, at paras. 51-57;
R. v.
    Taweel
, 2015 NSCA 107, 330 C.C.C. (3d) 368, at paras. 105-111, 123;
R.
    v. D.K.N.
, 2017 ONSC 3890, at paras. 67-71. As the Nova Scotia Court of
    Appeal put it, Narrative isnt a portal for gratuitous propensity evidence
    about uncharged similar facts:
Gareau
, at para. 51.

[73]

Meanwhile, defence counsel (not counsel on the
    appeal) raised no objection to the admission of any of the extrinsic evidence, some
    of which was of questionable admissibility, failed after the draft jury charge
    had been prepared to push his initial request for a propensity direction, and
    failed to ask for a cross-count direction until a jury question triggered the
    issue.

[74]

While defence counsels failure to object to either
    the draft jury charge or the charge ultimately given may help to explain why
    the required jury directions were missed, the failure to object is not, in this
    case, fatal to this ground of appeal. Trial judges are to properly instruct
    juries as to the use that those juries can make of evidence which is highly
    prejudicial to an accused in relation to the accuseds character:
B.(F.F.)
,
    at p.733. In this case, the jury was exposed to extensive highly prejudicial
    evidence of the appellants bad character. There is no basis for concluding, as
    in
R. v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, that defence counsel
    chose not to object for tactical reasons. Nor is there any other basis for
    holding the appellant responsible for the trial judges failure to provide
    cross-count directions or a limiting instruction. In the circumstances, the absence
    of comment or objection by counsel for the accused does not vitiate this duty:
B.(F.F.)
, at pp. 735-36.

(a)

The failure to give cross-count directions

[75]

I am persuaded that there was a real risk that,
    absent proper cross-count directions, the jury would likely consider the whole
    of the evidence in deciding the appellants guilt on each of the charges.

[76]

The nature of the evidence offered between
    counts raised this risk. SSs evidence had a systematic character to it, from
    count to count. With respect to two counts, she testified that she had been
    choked into unconsciousness. With respect to another two counts, that she had
    been anally raped. Although similarity is not required to trigger the
    application of the similar fact evidence rule, logically, the similarity of bad
    character evidence increases the risk of cross-count reasoning. Cross-count
    reasoning was therefore highly likely in relation to the allegations made by SS.

[77]

Cross-count reasoning was also highly likely between
    complainants. For example, SS testified to being choked repeatedly, describing
    choking as the appellants thing. BS said he too was choked. Both BS and TS
    described disciplinary beatings with belts.

[78]

This risk of cross-count reasoning, presented by
    the nature of the evidence, was enhanced by the manner in which the case was
    prosecuted. Although the Crown did not expressly invite the jury to use cross-count
    reasoning, it presented its charges using the narrative of an abusive
    household. The Crown spoke generally in its opening and closing statements
    about the years of abuse endured by SS and the children, giving the allegations
    a thematic cohesion that enhanced the risk that the jury would treat the counts
    as enmeshed.

[79]

In these circumstances, I agree with the
    appellant. Absent a direction cautioning against cross-count reasoning, both
    across counts involving different complainants, and across counts involving the
    same complainant, such reasoning was all but inevitable. Cross-count directions
    should have been provided.

[80]

I would not accept the Crowns arguments to the
    contrary. I will begin with the Crowns contention that cross-count reasoning
    was legally permissible with respect to the counts involving SS. First, even if
    true, this would provide no answer for the trial judges failure to give a
    cross-complainant, cross-count direction. Second, and more importantly, I do
    not accept the Crowns claim that cross-count reasoning was legally permissible
    on the counts involving SS.

[81]

To be clear, I do accept that, had the Crown applied
    under the similar fact evidence rule to permit cross-count reasoning on the SS
    counts, the application may well have been granted. Evidence of repeated acts
    of abuse of a victim are often admitted as similar fact evidence because they
    yield relevant and probative inferences, for example: that the accused is
    specifically disposed to act violently towards the victim (
R. v. Batte
(2000), 145 C.C.C. (3d) 49 (Ont. C.A.), at paras. 102-103); as proof of motive
    or
animus

to harm or dominate the victim (
R. v. F.(D.S.)
,
    (1999), 132 C.C.C. (3d) 97 (Ont. C.A.), at para. 25); or (provided such
    concerns have fallen into issue) to explain a delay in leaving the relationship
    or in reporting the abuse:
F.(D.S.)
, at para. 26;
R. v. A.L.
,
    2020 BCCA 18, 385 C.C.C. (3d) 407, at paras. 139, 191, leave to appeal refused,
    [2020] S.C.C.A. No. 83. The common availability of probative lines of
    reasoning, coupled with the reduced risk that triers of fact will engage in
    general propensity reasoning in the face of such specifically relevant evidence,
    often provides a commodious pathway to admission: see, for example,
R. v.
    Pasqualino
, 2008 ONCA 554, 239 O.A.C. 59, at para 31;
R. v. Sandhu
,
    2009 ONCA 102, 265 O.A.C. 206, at para. 16.

[82]

However, the Crown did not apply to use the evidence
    provided by SS across counts, nor did the Crown identify any cross-count
    inferences that she was seeking. Indeed, the Crown specifically held out during
    the pre-charge conference that she was not going to be asking the jurors to
    look at similar fact. Even during the post-jury charge colloquy that occurred
    after the jury asked about counts 6 and 7, the Crown agreed with defence
    counsels belated suggestion that the jury should be directed not to engage in cross-count
    reasoning. The Crowns assurances that it was not relying on similar fact evidence
    or seeking cross-count reasoning may well have influenced defence counsels
    closing submissions to the jury. It is not in the interests of justice to
    permit the Crown to raise the cross-count admissibility of evidence on the
    counts involving SS for the first time on appeal, after the trial Crown
    disclaimed such use during the trial.

[83]

I also reject the Crowns related submission
    that the evidence about the nature of the relationship is so enmeshed between
    counts that cross-count reasoning is necessarily permissible. There is no
    question that, in many cases, much benign or mundane background evidence about
    the nature of a relationship between an accused person and a complainant, such
    as their marital status or biographical information, will be narrated during a
    trial. This kind of narrative evidence permits the relevant story to be told in
    a natural manner and is readily admissible across counts. Since it is not
    discreditable, it is not caught by the rules now under consideration.

[84]

However, where the evidence about the nature of
    the relationship raises a real risk of prejudice because it discloses bad
    character, it is subject to the rules described, not immune from them. For
    example, evidence showing that the appellant had an ongoing abusive relationship
    with SS, or that he frequently interrogated SS using physical force or threats,
    does not become exempt from the similar fact evidence rule because it tells us
    something about the nature of their relationship. Like the term narrative,
    the nature of the relationship label cannot be allowed to operate as an
    unscrutinised gateway for the admission of highly prejudicial information. In
A.L.
,
    Fitch J.A. of the British Columbia Court of Appeal did not say otherwise. In
    the case before him, he concluded that the probative value of the bad character
    evidence outweighed the risk of prejudice it presented.

[85]

It is instructive that, in making this
    submission before us, when the Crown addressed the crucial question of the use
    it proposed to make of the relationship evidence in this case, it suggested
    two uses: to demonstrate the control the appellant exerted over SS and her
    children, and as explanation of delayed disclosure. These uses are, of course, two
    of the permissible inferences that are available when similar fact evidence is
    admitted. In substance, the submission that cross-count inferences relating to
    the counts are permissible to show the nature of the relationship is a more
    obscure reprise of the argument just rejected that cross-count evidence was
    admissible in this trial. I would therefore reject it.

[86]

Nor do I accept the Crowns contention that
    cross-count directions were not needed in this case because the circumstances
    reveal that the jury understood not to engage in cross-count reasoning, even
    without such directions.

[87]

First, I do not accept the Crowns submission that
    the jury would have gleaned that cross-count reasoning is impermissible from
    the trial judges detailed charge linking relevant evidence with each count. There
    is a difference between a judge earmarking the key evidence relating to a
    specific allegation, and a judge telling a jury not to allow evidence called on
    other charges to influence their decision. The former does not remove the need
    for the latter. Moreover, it should be a routine exercise in multi-count jury
    cases for the trial judge to link relevant evidence to the specific charges. If
    doing so was sufficient to replace the need for cross-count directions, such
    directions would be rarely rather than routinely required.

[88]

Nor do I agree that the fact that the jury
    acquitted the appellant of the charge in count 10 (the park incident) shows
    that the jury did not engage in cross-count reasoning. This argument
    presupposes that the jury would not have had a reasonable doubt on count 10 if
    it drew inferences from other counts. There is no basis to believe this. The
    jury may well have concluded that the accused is the kind of person who would
    commit the offences charged, including count 10, yet still have acquitted him
    on that count because of the inconsistent versions of the incident offered by SS.

[89]

Further, I have no confidence that the jurys
    question about counts 6 and 7 shows that the jury knew that they could not
    engage in cross-count reasoning. Certainly, defence counsel at trial drew the opposite
    inference, concluding that the question showed the need for a cross-count
    direction. Defence counsels thinking, of course, is that if the jury
    understood that they could rely solely on the evidence offered on the specific
    charge, why would they ask whether they could use other evidence?

[90]

In any event, the question asked by the jury did
    not relate to cross-count reasoning. The parties agree that when the jury was
    asking whether they could use evidence about an event that did not occur at address
    A in determining counts 6 and 7, they were likely alluding to the black eyes
    incident. That incident was not the subject of a charge. Given this, it is
    difficult to see how the jurys question can be taken as assurance that the
    jury understood not to engage in cross-count reasoning.

[91]

Nor can it be inferred that the jury would have
    understood not to draw cross-count inferences generally from the trial judges specific
    admonition in response to the jury question not to consider evidence outside
    the evidence related to that [charged] incident [in count 6 and 7]. Indeed,
    there is a risk that telling the jury not to do so only with respect to count 6
    and 7 could have led the jury to infer that cross-count reasoning is otherwise
    permitted.

[92]

The trial judge was required to give cross-count
    directions in this case relating both to cross-count reasoning between counts
    involving the same complainant, and cross-count reasoning between counts
    involving different complainants. This was not done, and these non-directions
    amounted to mis-directions. I would allow this ground of appeal.

(b)

The failure to give a propensity direction

[93]

The trial judge also erred in failing to provide
    a propensity direction relating to both charged and uncharged conduct. Once
    again, there was a real risk that without such direction the jury would engage
    in the prohibited line of reasoning that the accused is the kind of person who
    would likely commit the offences charged, thereby unfairly lowering the Crowns
    burden.

[94]

This case is not a single-complainant case where
    no propensity direction is required because permissible uses of the discreditable
    conduct evidence are so clear that there is no real risk that a jury would
    engage in propensity reasoning:
R. v. Beausoleil
, 2011 ONCA 471, 283
    O.A.C. 44, at paras. 20-21, 28
; R. v. M.T.
, 2012 ONCA 511, 294 O.A.C.
    111, at para.88. As indicated, there were no permissible inferences available
    from the discreditable conduct in this case because the Crown said it was not
    relying on similar fact evidence.

[95]

Even leaving this aside, the risk of propensity
    reasoning was high. This case involved multiple complainants, elevating the
    risk. The evidence cast the appellant in a contemptible light. Together, it showed
    him to be a wealthy drug dealer and a pimp, who controlled SS for his own
    sexual gratification, brutalizing and demeaning her by anally raping her and
    beating her mercilessly. The evidence showed that for years he left SS to care
    for children he did not want, before moving in with SS and the children and then
    repeatedly beating and traumatizing them while holding SS captive. Together,
    this profile of the appellant was highly prejudicial. The risk that this
    evidence would be used to show the appellants contemptible character was intensified
    by the detailed recitation by the trial judge, in the witness-by-witness
    portion of her charge, of almost every grain of prejudicial information, even
    where it bore no permissible relevance to the decision the jury would have to
    make.

[96]

In making the following comment, I do not want
    to be taken as suggesting that all the discreditable conduct evidence presented
    at the appellants trial needed to be heard, but certainly much of it did. The
    words of Doherty J.A., in
Chamot
, at para. 61, are therefore apt:

While the search for the truth demanded that
    the jury hear evidence that put [the appellant] in a very bad light, that
    search equally demanded that the jury understand the purposes for which it
    could not use that evidence in its deliberations. No such limiting instruction
    was given.

[97]

The Crown argues that other instructions
    provided by the trial judge, coupled with Crown submissions, sufficed in
    communicating to the jury that they should not engage in general propensity
    reasoning. Once again, I disagree.

[98]

The propensity direction given by the trial
    judge relating to the appellants criminal record cannot be treated as a direction
    not to engage in propensity reasoning generally:
Chamot
, at paras.
    65-66. Indeed, the risk that a jury might engage in propensity reasoning can be
    enhanced where a targeted direction is given not to use propensity reasoning
    relating to the criminal record of the accused, but not with respect to other discreditable
    conduct:
R. v. N.(R.K.)
(1997), 114 C.C.C. (3d) 40, (Ont. C.A.) at p.
    47.

[99]

For similar reasons, the fact that the trial
    judge told the jury, in response to its count 6 and 7 question, that they were
    not to use evidence which may suggest that [the appellant] may have been more
    likely to commit the offence related to the [count 6 and 7] incident does not
    suffice. Once again, this direction is confined to reasoning related to counts
    6 and 7 and, in any event, is not clear in describing the prohibited propensity
    inference.

[100]

Nor can the fact that the trial Crown asked the
    jury not to use the gun incident to convict the appellant of these charges give
    assurance that the jury knew to avoid propensity reasoning. Not only does this
    request not speak to propensity reasoning, it is confined to one item of
    evidence, and it comes from the Crown instead of the trial judge. It is the
    trial judge who has the relevant obligation and who, unlike the Crown, has the
    authority to direct the jury.

[101]

Occasionally, courts have rejected appeals based
    on the failure of a trial judge to give a propensity direction where such
    failure did not prejudice the accused, but, instead, spared the accused from the
    reciprocal need for the judge to recite the damaging permissible uses of the
    similar fact evidence:
Batte
, at paras. 113-114;
Sandhu
, at para.
    17;
R. v. N.(T.)
, 2011 ONCA 114, at paras. 20-22. The Crown argues
    that we should reject this ground of appeal for the same reason. I would reject
    that submission for two reasons.

[102]

First, as explained, the trial Crown did not
    apply for the admission of similar fact evidence, or identify permissible
    inferences. Instead, she made it clear that she was not relying on similar fact
    evidence. There were therefore no permissible similar fact inferences to be
    communicated to the jury that would work against the interests of the accused.

[103]

Second, I accept the appellants submission that
    the discreditable conduct evidence in this case was so highly prejudicial that a
    propensity direction would have benefited the appellant, even if there had been
    permissible uses that would then have been related to the jury.

[104]

The trial judge erred in failing to give a
    propensity direction. I would allow this ground of appeal.

B.

DID THE TRIAL JUDGE ERR BY GIVING AN INEFFECTIVE
    JURY CHARGE?

[105]

I have described the jury charge above in paras.
    39-43. The appellant claims, in substance, that the jury charge was so
    excessively long and so laden with unnecessary information in what was a
    straightforward credibility case that it was ineffective. The appellant urges
    that the trial judge failed to discharge her obligation to decant and
    simplify by engaging in the requisite careful and considered culling to
    avoid unnecessary, inappropriate and irrelevant legal instruction of a kind
    that might well divert the jurys attention:
R v. Rodgerson
, 2015 SCC
    38, [2015] 2 S.C.R. 760, at paras. 50-52, citing
R. v Jacquard
, [1997]
    1 S.C.R. 314, at para 13; and
R. v. Pintar
(1996), 110 C.C.C. (3d) 402
    (Ont. C.A.), at p. 414. Not only was the charge too confusing to give the requisite
    guidance to the jury, the appellant submits that the trial judges inclusion in
    the charge of complicated legal directions on matters that were not in issue 
    such as whether the child complainants consented to the assaults against them, whether
    SS consented to the alleged sexual assaults, and whether the accused knew there
    was no consent to the assaults  was highly prejudicial to the appellant by
    distracting the jury from the real issue in the case, which was credibility,
    and by creating the impression that he was trying to defend the charges on
    these unrealistic bases.

[106]

The Crown argued that while the trial judges
    charge was imperfect, it was functionally adequate, enabling jurors to
    understand the issues involved, and that it fell within the broad discretion
    allowed to trial judges in crafting jury charges:
R. v. Newton
, 2017
    ONCA 496, 349 C.C.C. (3d) 508, at paras.11-13. It provided the fundamentals,
    including by tying the evidence to the specific allegations laid, the primary
    infirmity in cases such as
Newton
, at para. 14, and
R. v. Barreira
,
    2020 ONCA 218, 62 C.R. (7th) 101, at para. 40.

[107]

I need not resolve this ground of appeal because
    I would order a new trial as a result of the failure by the trial judge to give
    cross-count directions and a propensity direction. This case nonetheless
    provides an opportunity to reinforce two key considerations in crafting jury
    charges.

[108]

First, a bulk recitation of all the evidence
    heard at the trial, without discrimination or analysis, is of no assistance to
    the jury:
Barreira
, at para. 30. Indeed, as this case shows, it is
    apt to do more harm than good. The jury charge was unnecessarily long in what
    was a straightforward case. Close to half of the charge, 84 of the 192
    transcript pages, was dedicated to summarizing testimony that the jury had
    heard directly. This not only taxed the powers of the jurors concentration,
    increasing the risk of confusion and inattention, it resulted in the prejudicial
    repetition of a significant amount of collateral bad character evidence. The
    trial judge would have been better advised to have forgone this part of the
    charge and focussed instead on the summary she offered of the material evidence
    relevant to the issues.

[109]

Second, instead of identifying the legal issues
    that required explanation, the trial judge included large extracts from a model
    charge manual relating to matters not in issue. In
Rodgerson
, at paras.
    51-53, Moldaver J. counselled against doing so and urged trial judges to
    isolate relevant legal instructions. Legal directions are often conceptually
    challenging. In the interests of efficiency and focus, jurors should not be
    taxed with legal instruction on matters that are not in issue, as occurred in
    this case.

[110]

Indeed, one of the legal issues discussed in the
    charge was not only not a live issue but was not properly before the jury. The
    children complainants were minors, legally incapable of consenting to the
    alleged assaults, yet the jury was educated in the law of consent relating to
    the assault charges against the children, including factors that vitiate
    consent, none of which applied.

[111]

It is understandable that trial judges may want
    to ensure that they have identified all requisite elements of a charged offence
    for the jury. However, in
Newton
, at para. 11, Laskin J.A. did not say
    that all elements of a charged offence should be included in every jury charge.
    He said that a charge should include the legal framework,
typically the
    elements of the offence
or offences with which the accused is charged (emphasis
    added). There is no need to educate jurors about elements of a charge or
    associated legal doctrine (such as factors that can vitiate consent, or
    alternative bases for finding
mens

rea
such as
    recklessness in this case) where these matters do not arise. Uncertainty about
    what to include can easily be settled by raising the issue directly with
    counsel during the pre-charge conference to ascertain whether any elements of
    the offence can be omitted from the jury direction as immaterial to the case.

CONCLUSION

[112]

For the reasons provided, I would allow the
    appeal, set aside the convictions on all charges, and order a retrial.

Released: D.M.P. October 23, 2020

David M. Paciocco J.A.

I agree. I.V.B. Nordheimer J.A.

I agree. Thorburn J.A.





[1]
Most of the allegations are identified in the indictment by time
    frame and by the residence address where the charge is alleged to have
    occurred. I will identify the charged incidents using time frame alone in order
    to reduce the use of biographical information that could assist in identifying
    the complainants.


