



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or broadcast
    or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. P.J.B., 2012
    ONCA 730

DATE: 20121030

DOCKET: C52610

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.J.B.

Appellant

Jill D. Makepeace, for the appellant

Gavin MacDonald, for the respondent

Heard: April 3, 2012

On appeal from the conviction entered by Justice Robert
    A. Riopelle of the Superior Court of Justice, sitting with a jury, on May 14,
    2010, and from the sentence imposed on August 23, 2010.

Watt J.A.:

[1]

A jury was asked to decide whether the way in which a stepfather kissed
    his teenaged stepdaughter was a crime. The jury decided that, sometimes, the
    kissing was a sexual assault, but at other times it was not.

[2]

P.J.B. (the appellant) says that the jurys verdict was flawed because
    the trial judge failed to instruct the jury properly on the central issues in
    the case, especially those raised on the appellants behalf at trial.

[3]

These reasons record my agreement with the appellant and explain why I
    would order a new trial.

THE BACKGROUND FACTS

[4]

A brief overview of the circumstances underlying the complainants
    allegations and a description of the manner in which the case proceeded at
    trial provides a sufficient background in which to assess the appellants
    claims of error.

The Setting and Early Relationship

[5]

The appellant met the complainants mother on an online dating service
    in February of 2004.  In March, the parties met in person. About two months
    later the appellant moved into the house where the complainant, her mother, and
    the complainants younger sister lived.

[6]

The complainant and her younger sister divided their time equally between
    their biological parents under a joint custody arrangement.

[7]

In the beginning, the appellants relationship with both sisters was
    good.  But as the appellant began to exercise greater influence over the
    children, including making decisions about their behaviour and disciplining
    them, the relationship began to deteriorate.

[8]

A reversal in the fragile relationship between the appellant and the
    complainant began when the appellant substituted positive attention for the
    negative treatment he had accorded the complainant earlier. In the result, the
    appellant and the complainant became very close.

[9]

The complainant began to interpose herself between her mother and the
    appellant, sitting between the couple on the couch and doing things for the
    appellant normally done by her mother. The appellant and the complainants
    mother told the children that they planned to marry on June 28, 2008.

The Kissing Incidents

[10]

In
    late April or early May 2008, the complainant went on a three-day school trip.
    When she returned, she told her mother and the appellant that she had kissed a
    boy on the trip. At first, everybody was happy. Very shortly, however, the
    appellant became concerned about the relationship between the complainant and
    the boy. He asked her to end the relationship and remove him from her Facebook
    friend list.

[11]

The
    appellant began to complain about the complainants kisses
[1]
soon after she returned from her school trip. The kisses were harder than
    they had been previously. The appellant began to stick his tongue in her mouth
    when they kissed, but he did not move it around. The complainant told the
    appellant that the tongue in mouth kissing grossed her out and made her
    feel crazy uncomfortable.

[12]

The
    complainant testified that the appellant told her that he knew she didnt like
    the tongue in mouth kisses. He explained that his purpose was to let the
    complainant know when she was kissing him wrong.

[13]

The
    appellant gave evidence that the tongue in mouth kissing didnt happen at
    all.

The Apology

[14]

Shortly
    after the school trip, the complainants mother confronted the appellant with
    what she regarded as excessive text messaging between the appellant and the
    complainant. Some messages were sent when the complainant was at school, others
    while the appellant was supposed to be sleeping. The appellant denied any
    impropriety in the messages.

[15]

Shortly
    after the confrontation, the appellant wrote a letter of apology to each of his
    stepdaughters. He explained that he wrote the letters because during the
    previous eight to ten months he had been short with them. He had not paid as
    much attention to them as he had previously. The precise terms of the letters
    were never authoritatively established because the letters were never found.

The Disclosure

[16]

At
    about 6:45 a.m. on May 21, 2008, the complainants mother saw the appellant and
    complainant lying on a living room loveseat together. Both were fully clothed. The
    complainant was on top of the appellant who had his arms around her.

[17]

The
    complainant told her mother that it was not the first time that she and the
    appellant had been on the couch together. Both denied any impropriety.

[18]

The
    following day, the complainants mother checked the telephone bill and found
    more than 600 text messages on the complainants telephone, including 60
    messages the day she left on her school trip and another 50 the day she
    returned. She confronted the appellant about the messages, as she had asked him
    not to text the complainant with such frequency.

[19]

During
    the following weekend, the complainants mother and the appellant continued to
    speak about the relationship between the appellant and complainant. He told her
    that he was afraid that the complainant was trying to break them up. He wanted
    to cancel the complainants impending overseas school trip. The complainants
    mother concluded that the appellant was encouraging and participating in the
    concerning behaviour she had noticed in his relationship with the complainant.
    Shortly thereafter, the police and Childrens Aid Society (CAS) became involved
    and the appellant was advised to leave the home.

[20]

The
    complainant acknowledged that she was very upset about the appellants threat
    to cancel her overseas trip. She did not disclose her allegations to her mother
    and police until she learned of the appellants threat, but denied the threat
    was the reason for her complaint.

The Indictment

[21]

The
    indictment on which the appellant was arraigned contained six counts: three
    alleging sexual assault and three charging sexual exploitation. At the end of
    the evidence and prior to closing addresses, Crown counsel at trial (who was
    not counsel on appeal) stayed the sexual exploitation counts because they were
    duplicative of the counts of sexual assault.

[22]

The
    jury deliberations related only to the three nearly identically worded counts
    of sexual assault. Two counts (count 1 and 3) alleged the same period of time
    and count 4 alleged a shorter but overlapping period.  All counts alleged the
    same place.  Each count was unparticularized containing no allegations about
    the sexual conduct that constituted its subject matter. Counsel for the
    appellant at trial (who was also not counsel on appeal) did not apply for
    particulars further describing the means by which each offence was alleged to
    have been committed.

The Trial Proceedings

[23]

The
    trial proceedings were brief. The fifth and final day of trial included the
    closing addresses of counsel, the judges charge, the jurys deliberations and
    the return of the jurys verdict.

[24]

After
    the judge had concluded his charge, counsel reminded him of their agreement of
    the previous day about the conduct alleged to form the subject matter of each
    count. Count 1 referred to the dramatic kissing. Count 3 involved the tongue
    in mouth kissing incident. Count 4 referred to the belt incident. The
    appellant was found guilty only of the tongue in mouth kissing count.

the grounds of appeal

[25]

The
    grounds of appeal advanced in oral argument recite several deficiencies in the
    final instructions of the trial judge. I would paraphrase the claims of error
    as failures of the trial judge to:

i.        review
    and relate the evidence to the issues raised at trial,         especially those
    issues advanced in the appellants defence;

ii.       fully
    instruct the jury on the position of the defence;

iii.      fairly
    review the evidence relevant to the jurys assessment       of the credibility
    of the Crowns witnesses and the reliability of         their evidence; and

iv.      provide
    limiting instructions on evidence of post-offence   conduct attributed to the
    appellant.

[26]

In
    oral argument, Ms. Makepeace did not pursue the complaint included in her
    factum that the trial judge unfairly interfered during trial counsels
    cross-examination of witnesses called by the Crown.

[27]

For
    ease of discussion, I have combined grounds i  iii into a single complaint of
    inadequate instruction on the central issues raised at trial.

Ground #1: Instructions on the Central Issues

[28]

Consideration
    of this compendious ground of appeal requires no further references to the
    evidence adduced at trial. A helpful place to begin an assessment of the
    adequacy of final instructions is with a reference to the positions advanced by
    counsel at trial, followed by an overview of the instructions themselves.

The Positions of the Parties at Trial

[29]

Counsel
    for the Crown at trial contended that each count of sexual assault was proven
    beyond a reasonable doubt on the evidence of the complainant.  Crown counsel
    advanced the complainant as a credible witness who gave reliable testimony. On
    the other hand, the appellant, a master manipulator, was unworthy of belief.

[30]

Counsel
    for the appellant at trial submitted that the offences alleged by the
    complainant never occurred or, where something of the nature alleged by the
    complainant had occurred, what happened was not a sexual assault. Counsel urged
    the jury to be especially cautious about relying on any evidence given by the
    complainant or her mother because they had colluded in their claims against the
    appellant.

The Charge to the Jury

[31]

At
    the outset of his final instructions, the trial judge explained to the jury
    that, contrary to his usual practice, he would not be providing an extensive
    review of the evidence introduced at trial. He told the jury that the evidence
    had been brief, lasting only three days, that counsel had reviewed it
    immediately before his charge, and that jurors would be provided with a list of
    the witnesses who testified and a verdict sheet the use of which he would later
    explain.

[32]

The
    trial judge instructed the jury that each count was a separate allegation that
    required a separate verdict. He told them that the presumption of innocence
    applied to each count and the verdicts on the counts need not be the same.

[33]

The
    trial judge described the position of the appellant at various places in his
    final instructions. Several paragraphs are representative of these instructions:


i.

The defences of course are, as he has testified, that the circumstances
    are not criminal. They might have been inappropriate but they are not criminal.
    They were not done in a sexual context. One of them is having to do with the
    pubic hair.  The defence is it did not happen that way at all. It was just the
    grabbing of the belt, but if it did happen that way, something like that
    happened it was accidental and that is not criminal.


ii.

It is not about whether you like him or you do approve of the way he
    disciplines or does not discipline. It is about whether or not these events
    actually occurred the way we are being told that they occurred.


iii.

As I said to you earlier, Mr. [B.] testified and he denied of course
    that there was any sexual context to these activities that we know were going
    on. That is for you to assess. And he maintained that the third one or the one
    with the pubic hair was an accident and that is for you to assess.  So that was
    his testimony.

The Arguments on Appeal

[34]

For
    the appellant, Ms. Makepeace says that the trial judge erred in failing to
    relate the evidence and the position of the appellant to the essential elements
    of the offences alleged in each count. She submits that the trial judge
    focussed on the requirement that force be applied intentionally to constitute
    an assault, rather than on the issue of whether the conduct said to constitute
    the sexual assault ever occurred. The impression left by the omission was that
    the conduct alleged had in fact occurred and the only issue for the jury to resolve
    was whether the conduct amounted to a sexual assault.

[35]

Ms.
    Makepeace contends that the trial judge failed to provide the jury with any
    real guidance on how to assess the credibility of the complainant and the
    reliability of her evidence. The instructions about the evidentiary value of
    prior statements were at best inadequate, at worst simply wrong and the trial
    judge gave the jury no assistance on the factors relevant for their assessment
    of the complainants evidence.

[36]

Further,
    Ms. Makepeace urges, the trial judge failed to isolate and address each count
    in the indictment. This failure assumes even greater importance in this case
    because the appellants position was not the same in each count. Nor did the
    trial judge relate the essential features of the evidence to the issue of
    whether the conduct alleged occurred in circumstances of a sexual nature.

[37]

For
    the respondent, Mr. MacDonald reminds us that the standard we are to apply in
    assessing the adequacy of jury instructions is not a standard of perfection. We
    are, he says, to take a functional approach and to determine whether, in the
    circumstances of the case being reviewed, the instructions given left the jury
    with a sufficient understanding of the issues to be decided to equip them to
    make their decision. In this case, Mr. MacDonald says, the instructions given
    fulfilled their function.

[38]

Mr.
    MacDonald emphasizes the brief, uncomplicated nature of the trial, the issues
    raised, and the evidence given. Only a handful of witnesses testified.  Counsel
    reviewed the evidence in detail on the same day the jurors were charged,
    deliberated, and reached their verdict. The trial judge repeatedly emphasized
    the jurors obligation to consider the evidence as a whole. The judges
    determination not to engage in a further recitation of the evidence was
    influenced by the circumstances of the case and is entitled to substantial
    deference.

[39]

Mr.
    MacDonald says that the jurors received adequate instructions about the way in
    which they were to assess the evidence and make their findings of credibility.
    The instructions on prior statements were overly favourable to the appellant. The
    jury was given the
W. (D.)
instruction and clearly distinguished among
    the counts by the verdicts they rendered.

The Governing Principles

[40]

Basic
    principles inform our decision about the adequacy of the trial judges
    instructions in this case.

[41]

Anyone
    charged with a criminal offence and tried by a jury is entitled to a properly,
    not perfectly, instructed jury:
R. v. Jacquard
, [1997] 1 S.C.R. 314,
    at para. 2.

[42]

As
    described by this court in
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545
    (Ont. C.A.), at para. 27, a trial judges final instructions must leave the
    jury with a clear understanding of:

·

the factual issues to be resolved;

·

the legal principles governing the factual issues and the
    evidence adduced at trial;

·

the positions of the parties; and

·

the evidence relevant to the positions of the parties on the
    issues.

[43]

In
    their final instructions most trial judges include a discrete statement of the
    positions of the parties, often a repetition of a brief summary prepared by
    counsel at the judges request. What controls, however, is substance not form. 
    In the end, however the message is delivered, jurors must be left with a clear understanding
    of each counsels position. To the extent that the positions may vary among
    counts in a multiple count indictment, the position on each should be made
    clear.

[44]

The
    responsibility of the trial judge to relate the evidence to the issues raised
    by the defence involves two components. The first is a
review
of the
    evidence. The second is a
relation
of the evidence to the position of
    the defence.  Except in rare cases, where it would be unnecessary to do so, a
    trial judge must review the substantial parts of the evidence and give the jury
    the position of the defence so that the jury appreciates the value and effect
    of that evidence:
Azoulay v. The Queen
, [1952] 2 S.C.R. 495, at pp.
    497-498. Typically, trial judges review the evidence in the context of the
    various issues and indicate what parts of the evidence support the positions of
    the respective parties on those issues:
MacKinnon
, at para. 29.
    Judicial
review
of the evidence refreshes the jurors memory of the
    evidence given. Judicial
relation
of the evidence to the issues improves
    jurors understanding of the particular aspects of the evidence that bear on
    their decision on each essential issue in the case.

[45]

A
    trial judge is under no obligation to review
all
the evidence adduced
    at trial:
MacKinnon
, at paras. 29-30; and
R. v. Daley
, 2007
    SCC 53, [2007] 3 S.C.R. 523, at paras. 55-56. Nor is a trial judge required to
    review the same evidence more than once where the evidence relates to more than
    one issue, provided the judge makes it clear to the jury that the evidence is
    relevant for more than one purpose:
Jacquard
, at paras. 14 and 16.

[46]

Trial
    judges have considerable latitude in connection with the volume of evidence
    they review and relate to the various issues the jury will be called upon to
    decide:
R. v. Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3; and
Daley
,
    at para. 57. It follows that the decisions of trial judges about the volume of
    evidence they choose to review in final instructions are owed substantial
    deference by appellate courts. The failure of a trial judge to mention individual
    items of evidence will not be fatal unless the items omitted constitute the
    sole evidentiary foundation of a defence:
R. v. Demeter
(1975), 25
    C.C.C. (2d) 417 (Ont. C.A.), at p. 436, affirmed on other grounds [1978] 1
    S.C.R. 538.

[47]

The
    obligation to review the substantial parts of the evidence and to relate it to
    the issues raised by the parties is that of the trial judge, not counsel,
    whether prosecuting or defending. The closing addresses of counsel cannot
    relieve the trial judge of the obligation to ensure that the jury understands
    the significance of the evidence to the issues in the case, although the judge
    can consider the closing addresses of counsel in deciding how to discharge his
    or her obligations:
MacKinnon
, at para. 32;
Royz
, at para. 3;
    and
R. v. Garon
, 2009 ONCA 4, 240 C.C.C. (3d) 516, at para. 84.

[48]

Appellate
    review of the adequacy of jury instructions requires a functional approach in
    which we test the instructions against their ability to fulfill the purposes
    for which final instructions are given:
Jacquard
, at paras. 32 and 41;
    and
MacKinnon
, at para. 27.

[49]

Jury
    charges do not take place in isolation, but in the context of the trial as a
    whole. Appellate review of the adequacy of jury charges must acknowledge this
    reality, especially where the complaint is about the extent to which the trial
    judge has reviewed the evidence in final instructions. Appellate review on this
    issue includes consideration of the complexity and volume of the evidence
    adduced at trial, the extent of its review by counsel in their closing
    addresses, the length of trial proceedings, the issues to be resolved by the
    jury, the effect of a more complete and balanced review of the evidence, and
    whether counsel objected to the charge on the ground advanced on appeal. The test
    is one of fairness:
Daley
, at para. 57. Provided the evidence is left
    to the jury in a way that will permit the jurors to fully appreciate the issues
    raised and the defences advanced, the charge will be adequate:
Daley
,
    at para. 57.

[50]

A
    consequence of the functional approach to jury instructions and their review by
    appellate courts is the absence of any requirement that the instructions
    conform with or follow a specific structure. Substance prevails, not form. That
    said, it is hard to controvert the principle that organized instructions are
    more likely to inform the understanding of the jury than are unorganized or
    disorganized directives. Final instructions that display an overall
    organization,
[2]
as well as an organized approach to individual parts, seem inherently more
    likely to fulfill the purposes for which instructions are given.

[51]

Among
    other things, unorganized or disorganized final instructions may result in:

·
the omission of essential
    instructions;

·
the inclusion of irrelevant or
    superfluous instructions; and

·
the unnecessary repetition of
    instructions already given.

In the result, the instructions may become needlessly
    complex, lengthy and confusing to the jury, and distract jury members from an
    informed decision on the essential and controverted issues in the case:
R.
    v. Rowe
, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 52.

[52]

In
    some cases, the unnecessary complexity of a jury charge may divert the jurys
    attention from the critical issues in the case to such an extent that a new
    trial may be required:
Rowe
, at para. 52; and
R. v. Hebert
,
    [1996] 2 S.C.R. 272, at para. 13.

[53]

Multiple
    count indictments, especially those in which the determination on each count
    depends on evidence limited to that count and which may involve bases of
    liability or defences different than those in play on other counts, impose a
    greater burden on trial judges in their final instructions.  Each count is
    separate.  Each requires a separate verdict. Each will often require legal
    instructions that differ from those that apply to other counts. Common features
    can be incorporated by judicial shorthand in final instructions, but where
    different principles are at work, they must be clearly stated to ensure they
    are appreciated by the jury.

The Principles Applied

[54]

The
    cumulative effect of several errors and omissions in the final instructions in
    this case satisfies me that we should give effect to this ground of appeal and
    order a new trial.

[55]

At
    bottom, this prosecution involved allegations of sexual offences committed on
    the daughter of the appellants common law partner. The evidence revealed three
    discrete forms of conduct by the appellant that the Crown alleged amounted to
    the offences charged:

·
the dramatic kissing incidents

·
the tongue in mouth kissing

·
the belt episode

The trial proceedings were brief, the witnesses few,
    and the evidence uncomplicated.

[56]

The
    form of the indictment contributed to the complexity of the proceedings to some
    extent. The indictment contained six counts, three of sexual assault and three
    of sexual exploitation. Each referred to the same or overlapping periods of
    time, same place, and same complainant. Typically,
[3]
no particulars of the specific conduct alleged were included in the count or
    sought by defence counsel. At the end of the evidence, Crown counsel stayed the
    three sexual exploitation counts. The jurors received no appreciable assistance
    on the subject matter of each count until they were recalled after the
    conclusion of final instructions.

[57]

The
    charge to the jury failed to accord separate treatment to each count that
    required the jurys decision beyond advising them that each count required a
    separate decision that was to be made wholly and exclusively on the evidence
    that related to that count and that the verdicts need not be the same on each
    count. The overall impression left by the charge is that the jurors had to
    decide whether the appellants conduct was merely inappropriate or was
    criminal.

[58]

What
    the charge as a whole lacked was a focussed reference to the factual issues to
    be resolved in connection with each count (as ultimately described), a
    statement of the positions of the parties in relation to the count, and a
    review of the significant features of the evidence that bore on the parties
    positions on each count.

[59]

On
    the count relating to the tongue in mouth kiss, the appellants position was
    that the incident never occurred. The trial judge never instructed the jury on
    this defence, rather implicitly brushed it aside with his focus on the criminal
    nature of the conduct.

[60]

The
    final instructions of the trial judge, including his response to the jurys
    request for a definition of assault and the actual written definition of the
    four elements of sexual assault, included reference to statutory provisions
    that had no foundation in the evidence or were legally irrelevant to the jurys
    task. The assistance the jury requested was not provided. In combination, the
    failure of the trial judge to instruct the jury on the position of the defence
    and the unnecessary complexity in the charge deprived the appellant of a fair
    adjudication of the merits of his defence and they warrant a new trial.

Ground #2: Failure to Instruct on
    Evidence of Post-Offence Conduct

[61]

The
    second ground of appeal alleges error by the trial judge in failing to instruct
    the jury that evidence of certain conduct attributed to the appellant after the
    complainant reported her allegations was of no evidentiary value in determining
    whether his guilt had been proven beyond a reasonable doubt.

[62]

An
    assessment of this claim of error requires a brief reference to the evidence at
    issue and the use Crown counsel at trial sought to make of it in his closing
    address to the jury.

The Background

[63]

On
    their first attendance after a telephone call from the complainants mother,
    the police concluded that the marital relationship had broken down and that the
    couple should separate. The parties agreed that the appellant should leave the
    matrimonial home for a few days and developed a plan to ensure that the
    children did not come into contact with the appellant.

[64]

The
    following day the complainants mother and a CAS worker returned to the home to
    retrieve some keys. The appellants truck was there. The CAS worker told the
    appellant to leave. The appellant explained that the police had told him to
    stay away from the house for two, or a couple of days.  He returned to the
    house two days later to retrieve some of his belongings.

[65]

The
    complainants mother was hospitalized shortly after police and CAS began their
    investigation. She claimed that the appellant wrote her a note of apology and
    later a suicide note. Neither contained any admission of wrongdoing.  She
    testified that the note of apology was delivered to her in the hospital, and it
    was marked as an exhibit at trial.  As discussed earlier in the Background Facts
    section, the appellant had also previously written apology letters to each of
    his stepdaughters. The complainants mother testified that when she returned
    home from the hospital these letters were missing.

The Closing Address of Crown Counsel at Trial

[66]

In
    his closing address to the jury, counsel for the Crown at trial referred to the
    evidence about the appellants return to the matrimonial home and the missing
    letters of apology. He suggested that the evidence supported the inference that
    the appellant manipulated the police to permit his premature return to the home
    to recover the letters, his purpose being to remove them as pieces of
    incriminating evidence.

The Jury Instructions

[67]

In
    his final instructions, the trial judge referred to the substance of the
    evidence to which the trial Crown had referred, but did not instruct the jury
    on its relevance to any issues they were to determine or impose any limitations
    upon its use.

The Arguments on Appeal

[68]

For
    the appellant, Ms. Makepeace says that evidence of post-offence conduct is
    circumstantial evidence that can be of assistance in completing proof of guilt
    provided the inferences it is said to support are reasonable. In this case,
    however, the inferences advanced by the trial Crown were unreasonable and speculative.

[69]

Ms.
    Makepeace contends that there was nothing sinister about the timing or
    frequency of the appellants return to the matrimonial home in light of the
    advice he received from the police, nor any evidence to link him to the
    disappearance of the letters of apology to his stepdaughters. The trial Crowns
    reference to this evidence in his closing address required an instruction from
    the trial judge that the evidence had no probative value on any issue at trial.
    The failure of the trial judge to provide such an instruction constituted
    misdirection.

[70]

For
    the respondent, Mr. MacDonald reminds us that evidence of post-offence conduct
    is not some unique or special kind of evidence, but simply circumstantial
    evidence of things done or said by an accused after an offence has been
    committed. The evidence, which is admissible where it is relevant and capable
    of supporting reasonable inferences such as showing the culpable character of an
    accuseds conduct, does not attract any special warning or instruction about
    evidentiary use.

[71]

Mr.
    MacDonald says that the cumulative effect of the evidence relied upon here can
    sustain an inference that the appellant removed the letters of apology to evade
    detection. Thus, the trial judge would have been wrong to provide a no probative
    value instruction about this evidence. But even if a no probative value
    instruction were required, its omission caused the appellant no prejudice
    because of the peripheral nature of the evidence and the lack of objection at
    trial.

The Governing Principles

[72]

The
    parties occupy common ground about the basic principles that control our
    decision on this ground of appeal. They part company about the result the
    application of these principles should yield in this case.

[73]

Three
    basic principles about evidence of post-offence conduct are of significance
    here.

[74]

First,
    evidence of post-offence conduct is not some unique or special kind of evidence
    that is subject to specific rules because of its peculiar nature. It is
    circumstantial evidence, the relevance and admissibility of which depends on
    the application of basic evidentiary principles:
R. v. White
, 2011 SCC
    13, [2011] 1 S.C.R. 433, at paras. 22, 38, 105, 132, and 137.

[75]

Second,
    evidence of post-offence conduct is not subject to any special warning about
    evidentiary use:
White
, at paras. 21, 105, and 137.

[76]

Where
    the circumstances require a specific instruction about limited evidentiary use,
    a failure to give such an instruction, an error of law, may be subject to the
    application of the proviso in s. 686(1)(b)(iii):
White
, at paras.
    95-98;
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25;
    and
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 35-36.

The Principles Applied

[77]

I
    would not give effect to this ground of appeal. I am satisfied that evidence of
    what the appellant did and said after the complainants disclosures to the CAS and
    police was properly admitted at trial and required no express instruction
    limiting or prohibiting its use by the jury during their deliberations. Even if
    some instruction should have been provided to the jury about the use of this
    evidence, I am satisfied that its omission did not occasion the appellant any
    substantial wrong or miscarriage of justice in the circumstances of this case,
    and the proviso of section s. 686(1)(b)(iii) would apply.

[78]

The
    evidence included testimony that the appellant wrote apology letters to the
    complainant and her sister and asked the complainants mother to hide the
    letters so that visiting family members would not see them. When the complainants
    mother returned home from the hospital, the letters were gone. The appellant
    had returned to the house in the interim. Considered in its entirety, this
    evidence could support an inference that it was the appellant who removed the
    letters to avoid their inculpatory implications.

[79]

Second,
White
instructs that the mere introduction of circumstantial evidence
    of post-offence conduct requires no special warning to the jury about its use:
White
,
    at paras. 21, 105, and 137.

[80]

Third,
    trial counsel for the appellant did not object to Crown counsels reference to
    this evidence in his closing address or seek any no probative value or
    limiting instruction about the evidence in the charge to the jury.

[81]

Fourth,
    evidence of the post-offence conduct of the appellant was not a significant
    aspect of the Crowns case against the appellant. The principal issues at trial
    were whether the conduct alleged by the complainant took place, and whether
    some incidents were of a sexual nature. On these issues, the Crowns case
    depended on the jurys acceptance of the evidence of the complainant.

[82]

Finally,
    the evidence of post-offence conduct related to the conduct that formed the
    subject matter of all counts on which the jury was asked to render a verdict.
    The appellants acquittal on two of the three counts tells heavily against any
    claim that reception of the evidence or the absence of limiting instructions
    caused the appellant any prejudice.

conclusion

[83]

For
    these reasons, I would allow the appeal, quash the conviction, and order a new
    trial on count 3 of the indictment. In these circumstances, it is not necessary
    to consider the appeal from sentence.

David
    Watt J.A.

I
    agree W. Winkler C.J.O.

I
    agree John Laskin J.A.

Released:
October 30, 2012 JL





[1]
The manner in which the appellant and the complainant kissed,
    described at trial as dramatic kissing, was the subject of the first count of
    sexual assault contained in the indictment.  The appellant was acquitted of
    this count at trial.



[2]
For example by division into sections such as:
Introduction
    and Basic Concepts, The Issues, The Positions of the Parties, and Available
    Verdicts and Concluding Instructions
.



[3]
As a general rule, indictments and informations containing counts
    of sexual assault do not describe the nature of the conduct that forms the
    subject matter of the charge.


