



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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. L.O., 2015 ONCA 394

DATE: 20150604

DOCKET: C54459

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L. O.

Appellant

Paul J.I. Alexander, for the appellant

Alex Hrybinsky, for the respondent

Heard: March 30, 2015

On appeal from the convictions entered on October 29,
    2010 and the sentence imposed on March 7, 2011, by Justice Jane A. Milanetti of
    the Superior Court of Justice, sitting with a jury.

Doherty J.A.:


I



OVERVIEW

[1]

The appellant was convicted by a jury of sexual assault (count 1), sexual
    interference (count 2), invitation to touch for a sexual purpose (count 3), and
    possession of child pornography (count 4). The first three counts alleged that
    the appellant sexually abused L.F., his five-year old great-niece. The fourth
    count alleged that the appellant was in possession of child pornography found
    on two computers and several CDs seized from his apartment.

[2]

The trial judge imposed sentences of five years concurrent on counts 1-3.
    She determined that a one-year consecutive sentence was appropriate on the
    child pornography charge (count 4) and credited the appellant with 270 days for
    his presentence custody, resulting in a sentence of 95 days consecutive to the
    five years imposed on counts 1-3.

[3]

The appellant appeals his convictions and sentence.

[4]

On the conviction appeal, counsel alleges several errors in the jury instructions.
    All but one relate to the instructions concerning the use the jury could make
    of L.F.s prior consistent statements. In the remaining ground, counsel submits
    that the trial judge failed to instruct the jury that evidence of the appellants
    possession of child pornography could not be used in determining his guilt on
    the sexual abuse charges. Counsel submits that if any of these grounds succeed,
    the convictions on counts 1-3 must be quashed and a new trial ordered on those
    counts. Counsel also advances an ineffective assistance of counsel claim. He
    submits that if this argument succeeds, all the convictions must be quashed and
    a new trial ordered.  Lastly, counsel argues that even if the convictions
    should all stand, the rule against multiple convictions in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729 precludes convictions on counts 1, 2 and 3.

[5]

On the sentence appeal, counsel submits that the trial judge did not
    give the appellant adequate credit for his presentence incarceration.

[6]

I would allow the conviction appeal on the ground that the trial judge
    erred in failing to expressly instruct the jury that evidence of the
    appellants possession of child pornography was inadmissible on counts 1-3 and could
    not be considered by the jury in determining its verdicts on those counts. A
    clear, strong caution against the use of that evidence was essential to a fair
    trial on counts 1-3. I would quash the convictions on those counts and order a
    new trial.

[7]

There is no merit to the other grounds raised on the conviction appeal. The
    failure to caution the jury against the use of the appellants possession of
    child pornography on the sexual abuse charges does not affect his conviction on
    count 4, the charge of possession of child pornography. I would dismiss the
    appeal from that conviction.  As I would order a new trial on the sexual abuse
    charges, I need not consider the potential application of the
Kienapple
principle to multiple convictions on those counts.

[8]

On the appeal from the sentence imposed on the possession of child
    pornography conviction, I agree with the Crowns concession that in light of
R.
    v. Summers
,
2014 SCC 26,
    [2014] 1 S.C.R. 575, released after the trial judge sentenced the appellant,
    the trial judge erred in giving the appellant only 1:1 credit for the 128 days he
    was in custody between conviction and sentence. She should have given 2:1
    credit.  I would vary the sentence imposed to give the appellant an additional
    128 days credit on the sentence imposed for possession of child pornography. Taking
    the additional credit into account, I would allow the sentence appeal on that
    count and vary the sentence to time served.


II



THE EVIDENCE

(i)

The sexual abuse charges (counts 1-3)

[9]

L.F. lived with her mother (B.O.) and step-father (R.R.). In the summer
    of 2007, the appellant babysat L.F. from time to time. She stayed overnight at
    the appellants apartment a few times, including on the Labour Day weekend.

[10]

On
    the Monday of the Labour Day weekend, L.F. returned home from the appellants
    apartment. She seemed normal and in good spirits. Sometime after L.F. returned
    home, R.R. went into her bedroom to check on her. He found L.F. touching her
    genitals. He asked her what she was doing. L.F. replied that she was doing what
    her uncle L.O. (the appellant) had done to her.

[11]

R.R.
    immediately spoke to her mother, who spoke to L.F. According to her mother, after
    some hesitation, L.F. confirmed what she had told R.R. and added details about
    the nature of the abuse. L.F.s mother checked her vaginal area for signs of
    injury but found none.

[12]

L.Fs
    mother and step-father took her to St. Josephs Health Centre and later that
    evening to McMaster Childrens Hospital. Medical staff at both hospitals
    examined L.F. She eventually told the doctors what the appellant had done to
    her. L.F. also spoke to the police while she was at McMaster Childrens Hospital
    and told them about the abuse.

[13]

On
    September 6
th
, three days after L.F. first reported the abuse, she
    gave a police statement that was video-recorded. That statement was admitted at
    trial pursuant to s. 715.1 of the
Criminal Code
, R.S.C. 1990, c. C-46
.

[14]

In
    her video statement, L.F. said that the appellant had performed various sexual
    acts on her and made her perform fellatio. L.F. described gooey stuff that
    came out of the appellants penis. She said she had spit it into the toilet. L.F.
    also described an incident in which the appellant had penetrated her vagina
    with a screwdriver. L.F. ultimately adopted the contents of the video statement
    she had made on September 6
th
as true, at trial. She also gave additional
    evidence concerning the allegations.

[15]

There
    was no physical evidence supporting the sexual abuse allegations.  One witness
    testified that L.F. did not stay at the appellants apartment on the Labour Day
    weekend.  Her evidence, however, was contradicted by all the other witnesses.

[16]

The
    defence cross-examined L.F. at length on several statements she had made about
    the allegations to various people. She was cross-examined about statements she
    made to her mother, step-father, medical staff at both hospitals, the police,
    on her video-recorded statement, and on her preliminary inquiry testimony. The
    cross-examination revealed several inconsistencies, including the following:

·

At the preliminary inquiry, L.F. testified that the appellants
    niece, Rachel, was present when L.F. was assaulted with the screwdriver and had
    come to L.F.s assistance, taking the screwdriver away from the appellant. In
    her video statement, she said no one else was present.

·

L.F. gave various accounts of the number of times that she had
    been assaulted by the appellant, ranging from lots of times to a couple
    times.

[17]

The
    appellant did not testify. It was the position of the defence at trial that
    L.F. was not credible and her evidence was not reliable. Counsel argued to the
    jury that L.F. had imagined the abuse. The defence relied heavily on what
    counsel claimed were the many material inconsistencies among the various
    statements made by L.F.

(ii)

The possession of child pornography charge (count 4)

[18]

Shortly
    after L.F. made her statement to the police, the police executed a search
    warrant at the appellants apartment. They seized two computers and 11 CDs
    found in the living room. Police found images of child pornography and video
    files containing child pornography on the computers. They also found child
    pornography on several of the CDs.

[19]

The
    defence did not contest that the material found and seized by the police
    constituted child pornography. The defence maintained, however, that the
    appellant had not downloaded the material or viewed it, and was therefore not
    in possession of that material. The defence called a witness who testified that
    he saw the appellants niece downloading child pornography onto the appellants
    computer. According to this witness, the appellant angrily told his niece to
    remove the material from the computer. The appellants niece, called as a Crown
    witness, admitted that she and her boyfriend used the computer, but denied
    downloading child pornography.


III



THE CONVICTION APPEAL

(i)

The ineffective assistance of counsel claim

[20]

The material filed by the appellant to support the claim of ineffective
    assistance of counsel consists entirely of an affidavit from appellate counsels
    legal assistant and preliminary inquiry extracts. Various witness statements,
    presumably provided as part of the trial disclosure, are attached as exhibits
    to the affidavit. There is nothing else. There is no affidavit from the
    appellant. There is no affidavit from trial counsel. There is no affidavit from
    anyone who has firsthand knowledge of any of the relevant events. Nor did appellate
    counsel seek to cross-examine trial counsel on the allegations he now makes
    against trial counsel. Based on this record, it is difficult to give any
    credence to the arguments advanced in support of this ground of appeal.

[21]

Counsel
    submits that trial counsels decision not to re-call L.F. for further
    cross-examination at trial amounted to ineffective representation. During the
    trial, counsel sought a mistrial based on the mid-trial disclosure that L.F.
    had told her mother that she lied during her testimony. After hearing argument,
    the trial judge declined to declare a mistrial, but ruled that counsel could re-call
    L.F. for a limited cross-examination on the statement she made to her mother. Counsel
    declined to re-call L.F., indicating that he was acting on the instructions of
    the appellant.

[22]

There
    is nothing in the fresh evidence to contradict trial counsels statement on the
    trial record. I cannot accept counsels allegation of ineffective assistance
    arising out of a tactical decision made on the express instructions of the client.
    This submission is undercut by the absence of any evidence from the appellant
    suggesting that trial counsel misrepresented his instruction, or that there was
    some reason why the appellant should now be allowed to resile from that
    instruction.

[23]

Counsels
    next argument is premised on the assumption that the material attached to the
    legal assistants affidavit provides evidence that L.F. was abused by a third
    party at some time before the alleged abuse by the appellant. There is no such
    evidence in the attachments to the affidavit. Assertions contained in a witness
    statement attached to the legal assistants affidavit are not admissible for
    the truth of their contents. Nor do the extracts from the preliminary inquiry,
    which refer to allegations of prior abuse, provide any evidence that L.F. was actually
    abused.

[24]

Counsel
    further contends that even if there was no evidence of sexual abuse by a third
    party, trial counsels failure to investigate that possibility amounted to
    ineffective representation. Nothing in the material filed by the appellant
    offers any support for this claim. The extent to which counsel may have
    investigated the possibility of third party abuse, and his reasons for not
    advancing that claim at trial, are not addressed in the fresh evidence.

[25]

The
    appellant has the burden of showing facts said to support the ineffective
    representation claim:
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35 (Ont.
    C.A.), at p. 48, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347;
R.
    v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 119.  He does
    not meet that burden by asserting facts for which there is no evidence, nor by
    asking the court, in the absence of evidence, to draw inferences against trial
    counsels conduct of the defence.

[26]

Counsel
    next submits that trial counsel provided ineffective assistance by failing to
    pursue the argument that the adult language used by L.F. demonstrated that
    her allegations had been tainted by suggestive questioning. In support of
    this argument, counsel refers to extracts from the various statements made by
    L.F. that were adduced into evidence at the trial.

[27]

In
    almost every trial, there are several possible arguments that could be made. Counsel
    must decide what arguments to put forward. That decision involves the exercise
    of professional judgment. Allegations of ineffective assistance are not a forum
    for second guessing judgment calls made at trial. The argument appellate
    counsel now says should have been made, was in fact made to some extent by
    trial counsel. Perhaps it could have been given more emphasis, although the
    cogency of the argument is debatable. Whatever the merits of this argument, trial
    counsels decision to press other arguments does not amount to ineffective
    assistance.

[28]

Counsels
    fourth argument in support of the claim of ineffective assistance is not really
    an argument of ineffective assistance at all, but rather an argument that the
    trial judge misdirected the jury on the reasonable doubt standard. Counsel
    submits that in his jury address, trial counsel understated the reasonable
    doubt standard. He submits that the trial judge failed to correct counsels
    misstatement in her instructions.

[29]

Trial
    counsels explanation of the reasonable doubt standard to the jury may or may
    not have understated that standard. The trial judges instruction correctly
    described the standard in language that has been the accepted reasonable doubt instruction
    for over 15 years: see
R. v. Lifchus
, [1997] 3 S.C.R. 320, at para. 39. The
    trial judge told the jury to take their legal instructions from her and defence
    counsel qualified his description of the law with the same caution. I have no
    doubt the jury would have acted on the trial judges explanation of reasonable
    doubt. That explanation would not have misled the jury.

[30]

The
    appellant has not established ineffective assistance of counsel. I would reject
    this ground of appeal.

(ii)

The instructions on L.F.s prior statements

[31]

The
    evidence at trial was replete with references to prior statements L.F. made to many
    people, beginning with her initial disclosure and carrying through to her video-recorded
    statement to the police made about three days later. L.F. was also cross-examined
    on her preliminary inquiry testimony. The appellants trial counsel introduced
    the content of most of the statements during his cross-examination of L.F. and
    other Crown witnesses. As outlined above, it was the core of the defence that L.F.s
    prior statements revealed numerous inconsistencies that rendered her evidence at
    trial unreliable.

[32]

Counsel
    for the appellant submits that the trial judge should have told the jury that to
    the extent that L.F.s prior statements were consistent with her testimony,
    those prior statements could not be used to bolster her credibility. An
    instruction in those absolute terms would have been misleading. The manner in
    which a child discloses allegations of abuse, including the language used in
    making that disclosure, may assist a jury in assessing the reliability of the
    childs testimony. The potential significance of that evidence to the
    reliability of the childs testimony flows not from the mere consistency
    between the out-of-court statements and the testimony, but from the manner in
    which the abuse is revealed by the child: see
R. v. F. (J.E.)
(1993),
    85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476;
R. v. G.C.
, 2006 CanLII
    18984, at paras. 20-22. As explained in
R. v. Dinardo
, 2008 SCC 24,
    [2008] 1 S.C.R. 788, at para. 39:

The complainants prior consistent statements were not
    admissible under any of the traditional hearsay exceptions. Thus, the
    statements could not be used to confirm her in-court testimony. However, in
    light of the
evidence that the complainant had difficulty situating events in
    time, was easily confused, and lied on occasion, the spontaneous nature of the
    initial complaint and the complainants repetition of the essential elements of
    the allegations provide important context for assessing her credibility.
[Emphasis added.]

[33]

The
    trial judge instructed the jury in accordance with the authorities referred to
    above, indicating:

You have also heard details of [L.F.s] utterances to others,
    things she said to such as Dr. Hallett, Dr. Chu, her mother [B.O.], her
    stepfather [R.R.]. The fact that such utterances were made is admissible to
    assist you as to the sequence of events from the alleged offence to the
    prosecution, that you understand the conduct of the complainant, [L.F.], and
    assess her truthfulness or reliability. However, I must instruct you not to
    look to the content of the statements as proof that a crime has been committed.

[34]

L.F.s
    prior consistent statements were also relevant to the jurys assessment of the
    reliability of her evidence in a second, less direct way. Consistencies in her
    statements provided important context to assess the defence attack on L.F.s
    reliability based on alleged inconsistencies.

[35]

The
    trial judge correctly told the jury that prior inconsistencies were relevant to
    the reliability of L.F.s testimony and to her credibility. She also told the
    jury, again correctly, that the significance of inconsistencies in the
    assessment of L.F.s reliability and credibility could only be determined after
    an examination of the nature and extent of those inconsistencies. An isolated,
    minor inconsistency in a sea of otherwise consistent descriptions of the
    relevant events would have far less impact on L.F.s credibility and
    reliability than would several material inconsistencies going to the heart of her
    allegations.

[36]

The
    jury had to consider the entirety of the evidence relating to L.F.s various
    statements, including the consistencies in those statements, in deciding the impact
    of any inconsistencies in those statements on her credibility and reliability. To
    the extent that L.F.s statements were consistent, especially on the central
    features of the allegations, that consistency could counter, or at least
    mitigate, the defence claim that L.F. was not credible or reliable because of
    her many prior inconsistent statements: see D.M. Paciocco, The Perils and
    Potential of Prior Consistent Statements: Lets get it Right (2013) 17 Can.
    Crim. L. Rev. 188, at p. 199.

[37]

The
    appellant also alleges non-direction amounting to misdirection. Counsel argues
    that the trial judge erred in law in failing to tell the jury that it could not
    infer the truth of the allegations from L.F.s repetition of those allegations,
    and that it could not use the prior consistent statements to confirm or
    corroborate her testimony.

[38]

The
    trial judge did not give either instruction in her charge. Neither was requested.
    Certainly, the instructions could have been given and, in a perfect jury
    charge, would have been given: e.g. see
R. v. Austin
(2006), 214
    C.C.C. (3d) 38 (Ont. C.A.), at paras. 32-34. However, perfection is not the
    standard:
R. v. Ellard
,
2009 SCC 27, [2009] 2 S.C.R. 19, at paras. 41-42. I am satisfied that the
    failure to give these instructions in this case did not constitute a legal
    error.

[39]

The
    Crown did not rely on L.F.s out-of-court statements (except the video
    statement admitted under s. 715.1) for the truth of the contents of those
    statements. It was no part of the Crowns case that the jury should believe
    L.F. because she had repeated the allegations several times to several
    different people. It was the defence that introduced the vast majority of
    L.F.s prior statements in an effort to show the many inconsistencies among
    those statements. The defence argued that L.F.s prior inconsistent statements
    rendered her trial testimony unreliable. The Crown responded to that argument with
    the claim that the consistencies were insignificant when placed in the context
    of the entirety of L.F.s statements and the central allegations made by her.

[40]

The
    defence, as it was entitled to do, vigorously attacked L.F.s credibility and reliability
    using her prior statements. The Crown, as it was equally entitled to do, attempted
    to rebut those attacks with the contention that the statements were not inconsistent
    on material matters. The trial judges instructions on the prior statements
    reflected the manner in which those statements had been placed before the jury
    by the parties. Considered in that light, the trial judges instructions, even
    absent the alleged non-directions, adequately prepared the jury to properly
    assess L.F.s evidence. Counsels failure to object at trial supports my
    conclusion that the trial judges instructions properly captured the
    significance of the prior statements to the case put before the jury by the
    parties: see
R. v. Araya
, 2015 SCC 11, 17 C.R. (7th) 252, at para. 51;
Ellard
,
at para. 47.

[41]

The
    appellants next submission targets L.F.s video-recorded statement to the
    police. That statement was admitted under s. 715.1 of the
Criminal Code
.
    Counsel does not challenge the admissibility of the statement. Rather, he
    submits that the trial judge erred in instructing the jury that, in assessing
    the reliability of the video-recorded statement, the jury could consider:

The similarities and differences between the videotape and
    [L.F.s] evidence at trial. Were they similar or different, in important or
    minor details? Is there an explanation?

[42]

Counsel
    acknowledges that the instruction tracks the specimen instruction provided in D.
    Watt,
Watts Manual of Criminal Jury Instructions
(2
nd
ed), Final 29-C

(Toronto: Thomson Carswell, 2015), at p. 373. He
argues
    that the instruction invites the jury to infer the truth of the allegations in
    the video-recorded statement from their consistency with the rest of L.F.s
    testimony.

[43]

This
    submission misunderstands the effect of s. 715.1. When a childs video-recorded
    statement is admitted under s. 715.1, the statement becomes part of the childs
    in-court testimony as if the child were giving the statements on the videotape
    in open court:
R. v. F. (C.C.)
, [1997] 3 S.C.R. 1183, at para. 45. It
    falls to the jury to assess the entirety of the childs evidence, which
    includes the video-recorded statement and her in-court testimony. In making
    that assessment, the jury will have regard to a variety of factors, including
    internal consistencies and inconsistencies in the childs testimony.

[44]

Juries
    are routinely told to consider the entirety of a witnesss testimony when
    assessing the reliability of that witnesss evidence. Consistencies and
    inconsistencies in a witnesss testimony are relevant to that assessment. In
    this case, L.F.s video statement became part of her testimony. Consequently,
    as with any witness, the jury had to look at the entirety of her testimony,
    including the video-recorded statement and the in-court testimony, and consider
    whether any consistencies or inconsistencies within the entirety of her
    testimony shed light on the reliability of that testimony. To treat the video
    statement solely as a prior statement distinct from her testimony would defeat
    the purpose of s. 715.1.

[45]

The
    trial judges instructions parallel the analysis made by the trial judge in
F.
    (C.C.)
, [1993] O.J. No. 4241 (C.J.)
    and approved by the Supreme Court
. The instructions in this case,
    like the trial judges reasons in
F. (C.C.)
, identify both
consistencies and inconsistencies between
    the video-recorded statement and the trial testimony. Both factored into the
    assessment of the overall reliability of the childs evidence. The trial judge
    made no error in her s. 715.1 instruction.

[46]

The
    final submission relating to the prior statements of L.F. arises out of the
    trial judges failure, when reviewing the evidence relevant to each count, to
    repeat for a third time her instruction that the out-of-court statements of
    L.F. were not admissible for their truth. The trial judge had first told the
    jury that an out-of-court statement by L.F. was not admissible for its truth
    during L.F.s cross-examination, telling the jury:

[T]hose kinds of statements arent usually admissible and they
    cannot be used as proof of the offences that are before you. All that extra
    statement can be used for is as a tool for you to assess [L.F.s] credibility. So
    its not proof of the offence having occurred, its merely a tool for you to
    assess her credibility ultimately.

[47]

The
    trial judge gave a similar direction in her final instructions to the jury. When
    instructing the jury on prior inconsistent statements generally, the trial
    judge told the jury that it could use the out-of-court statements as evidence
    of what actually happened only if the witness adopted the out-of-court
    statement as true during his or her testimony. The trial judge also addressed
    L.F.s prior statements and specifically told the jury:

I must instruct you not to look to the content of the
    statements as proof that a crime has been committed.

[48]

The
    trial judge did not repeat this instruction when reviewing the evidence
    relevant to each count. No one asked her to do so. I am not satisfied that a
    further repetition of the instruction was essential to an adequate jury charge.
    L.F.s prior statements were repeatedly presented to the jury by counsel and
    the trial judge as central to the assessment of the reliability of her in-court
    testimony. No one suggested the statements provided proof of the alleged
    offences. The two limiting instructions given by the trial judge were
    sufficient to avoid the risk that the jury would misuse the prior out-of-court
    statements made by L.F.

(iii)

The instruction on the evidence of the appellants possession of child
    pornography

[49]

At
    trial, the Crown proposed to show the jury the various images and videos found
    on the appellants computers and the CDs seized from his apartment that the
    Crown alleged constituted child pornography. The Crown estimated that viewing
    the material would take between 1 and 1½ hours. The children shown in some of
    the material were very young, the material was sexually graphic and, as the
    Crown acknowledged, disturbing.

[50]

The
    trial Crown contended that the jury should view the material because the nature
    of the content of that material was an essential element of the charge of
    possession of child pornography (count 4). The Crown further submitted that the
    relevance of the evidence was not diminished even if the appellant was prepared
    to concede through counsel that the material met the definition of child
    pornography. The Crown argued that the actual content of the material and its
    close proximity on the CDs to music and other material that the Crown claimed could
    be shown to have been used by the appellant could assist the jury in deciding
    who among the people with access to the computer had downloaded and viewed the
    child pornography. On appeal, the Crown also argued that the amount of the
    material on the computer and CDs said to constitute child pornography was
    relevant to whether the appellant was knowingly in possession of that material.

[51]

The
    trial Crown did not suggest that viewing the images could support any aspect of
    L.F.s testimony.
[1]
As to the relevance of the child pornography to counts 1-3, the Crown said:

[J]ust so Im clear, Im not seeking to tender the child
    pornography evidence in regards to counts one, two and three. Actually, lets
    put it this way. I shouldnt, I shouldnt say that. It is possible.
Im not
    determined on the admissibility of the child pornography evidence vis-à-vis
    counts one, two and three. Potentially, there is an argument that it would
    demonstrate motive, that if the jury were satisfied that [the appellant] possessed
    the child pornography, it could be viewed as motive to molest a child in a
    similar fashion.
But parking that issue for the time being, without
    question, I mean, theres no severance here and these counts are together so
    were left to deal with it as is, clearly, the primary admissibility of the
    evidence is in respect of count four, which is to prove the offence. [Emphasis
    added.]

[52]

The
    defence submitted that the jury should not view the material. The defence
    argued that the actual viewing of the material could not assist the Crown in
    proving that the appellant had the requisite control and knowledge of the
    material to establish his possession. The defence indicated that the nature of
    the material was not in issue and that if a Crown expert opined that the
    material constituted child pornography, the defence would not challenge that
    assertion. Defence counsel argued that requiring the jury to look at over an
    hour of graphic child pornography would irreversibly inflame the jury against
    the appellant, were the jury to decide that it was his pornography. Defence
    counsel did not specifically address the relevance of the child pornography to
    counts 1-3.

[53]

In
    her ruling, the trial judge acknowledged the relevance of the content of the
    material to count 4. She also referred to the Crowns argument of the potential
    relevance of the evidence to counts 1 to 3. She then observed:

I do not think that the prejudice of viewing such inflammatory
    material does outweigh the probative value. I am concerned that the jury will
    improperly use this evidence as evidence of [the appellants] guilt on the
    first three counts.

[54]

The
    trial judge, in an effort to mitigate the prejudice she had identified, ruled that
    the jury would not be allowed to see the material, but that the investigating
    officer could testify and describe the contents of the material containing the
    child pornography. The investigating officer described the material in considerable
    detail. She referred to the titles, some very graphic, and described the
    physical activities, some of which involved sexual acts, including intercourse
    and fellatio between adults and very young children. The investigating officer
    also described the reactions of the children who were being subjected to the sexual
    abuse.

[55]

The
    officers description of the explicit sexual activities involving adults and very
    young children could well upset even the most reasonable and dispassionate of
    people. Her description of the reaction of one of the children who was being
    subjected to sexual abuse can only be described as heartbreaking.

[56]

Neither
    the Crown nor the defence offered any submissions as to the relevance of the child
    pornography to counts 1-3 before the trial judges charge. The Crown did not argue
    in its closing submissions that the evidence of the appellants possession of
    child pornography was relevant to counts 1-3.

[57]

In
    her instructions, the trial judge told the jury:

You must not use the evidence that relates only to one charge
    in making your decision on any other charge. You must not use evidence from one
    charge that the accused was the sort of person who would commit the offences and
    the other charges and on that basis infer that [the appellant] is in fact
    guilty.

[58]

The
    trial judge told the jury that she would go through each of the four counts individually
    and explain the law and the issues arising on each count. She also told the
    jury she would summarize some of the evidence as she went through each count.

[59]

The
    trial judge began her instructions with the essential elements of count 1 (sexual
    assault). She reviewed at length the evidence relevant to count 1. The trial
    judge made no reference to the appellants alleged possession of the child
    pornography in this part of her summary of the evidence. The trial judge repeated
    the process in respect of counts 2 and 3, although she did not review any of
    the evidence as it was the same evidence that she had reviewed on count 1.

[60]

The
    trial judge next turned to count 4, the charge of possession of child
    pornography. As with counts 1-3, she set out the essential elements of the
    offence and then reviewed the evidence that, pertained particularly to this
    count. The trial judge summarized the evidence relating to the seizure of the
    material, but did not repeat the detailed description of the contents of the material.
    She reminded the jury of the defence evidence that the appellants niece had
    downloaded the child pornography onto the computer.

[61]

The
    trial judge did not expressly instruct the jury that evidence that the
    appellant was in possession of child pornography could not be used by the jury
    in considering their verdicts on counts 1-3. She was not asked to give any
    limiting instruction beyond the instruction described above.

[62]

As
    I read the trial record, the trial judge intended that the evidence of the
    appellants possession of child pornography should be considered by the jury
    only in respect of count 4, the possession charge. The crucial question is
    whether her instructions achieved that intended purpose. However, before
    addressing that question, I will consider the Crowns contention on appeal, that
    the evidence of the appellants possession of child pornography was in fact admissible
    on the sexual abuse charges in counts 1-3.

[63]

The
    Crown contends that evidence that the appellant was in possession of child
    pornography at the same time as he was allegedly abusing L.F. provided evidence
    of motive. The Crown uses the word motive in the Wigmorian sense, as evidence
    of a prior emotion that precipitates the conduct which is the subject of the
    allegation: J.H. Wigmore,
Evidence in Trials at Common Law
, vol. IA
    (Boston: Little, Brown & Co., 1983), at paras. 117-18;
R. v. Malone
(1984), 11 C.C.C. (3d) 34 (Ont. C.A.), at p. 43, leave to appeal to SCC refused,
    [1984] S.C.C.A. No. 272;
R. v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d)
    373, at paras. 64-66.

[64]

On
    the Crowns argument, proof of the appellants conduct  his possession of
    child pornography  permits the inference that the appellant had an interest in
    sexual activity with children  a motive. The existence of the motive is a
    piece of circumstantial evidence which, taken with the rest of the evidence,
    can support the contention that the appellant sexually abused L.F.

[65]

Motive
    is a kind of circumstantial evidence. Motive is relevant if, considered in the
    context of the rest of the evidence, the alleged motive has a logical tendency
    to contribute to a finding about the material fact: D.M. Paciocco & L.
    Stuesser,
The Law of Evidence
, 7th ed. (Toronto: Irwin Law Inc., 2015),
    at p. 32. The Crowns argument that the appellants possession of child
    pornography is relevant and therefore
prima facie
admissible on counts
    1-3 can succeed only if three inferences are reasonably available on the
    totality of the evidence.

Inference #1:

It can be inferred from the
    appellants possession of child pornography that the appellant had an interest
    in watching sexual activity involving adults and young children.

Inference #2:

It can be inferred from the appellants interest in watching
    sexual activity involving children and adults that he had an interest in
    engaging in sexual activity with young children.

Inference #3:

It can be inferred from the appellants interest in engaging in
    sexual activity with young children that he sexually abused L.F., as alleged in
    counts 1-3.

[66]

The
    first inference does not present any difficulty. While possession of child
    pornography may not conclusively establish that the possessor has an interest
    in watching sexual activity involving children, it provides a reasonable basis
    for the inference that he has that interest.

[67]

The
    second inference assumes a correlation between sexual activities that a person
    is interested in watching and sexual activities that the same person is
    interested in doing. It may be that the correlation exists. However, I think
    the existence of the correlation, and its nature, if one exists, is beyond the
    experience and knowledge of the normal judge or juror. Evidence of the relationship
    between an interest in watching sexual activity with children and an interest
    in engaging in that activity falls within the expertise of the social scientists.
    The second inference is the kind of inference that can only be drawn with the
    assistance of a qualified expert. If the Crown wanted to rely on that
    inference, it was incumbent on the Crown to lead proper expert evidence to
    support the availability of the inference: see
R. v. Mohan
, [1994] 2
    S.C.R. 9, at pp. 20-25;
White Burgess Langille Inman v. Abbott and
    Haliburton Co.
, 2015 SCC 23, [2015] S.C.J. No. 23, at paras. 19-23.

[68]

My
    conclusion that the second of the three inferences outlined above cannot be
    drawn renders the evidence of the appellants possession of child pornography inadmissible
    on counts 1-3. However, for the sake of completeness, I will consider the
    availability of the third inference, assuming the second inference can be
    drawn.

[69]

When
    one speaks of motive in the sense of an emotion that compels an act, one can
    use the word to refer to a very specific emotion, e.g. the anger a person feels
    towards a spouse at the moment he learns of the spouses infidelity, or to a
    much more general emotion, e.g. a persons dislike of persons in authority. The
    former kind of motive can be very probative of the accuseds conduct toward the
    target of his anger at the point in time close to the event giving rise to the
    anger. The latter kind of motive, because of its generality, says little about
    the conduct of an accused toward a specific person at a specific time. Motive
    used in this latter sense is essentially indistinguishable from evidence of
    disposition and should, for the purpose of admissibility, be analyzed as
    evidence of disposition: see
Morris v. The Queen
, [1983] 2 S.C.R. 190
, per Lamer J.
    (dissenting in the result, but for the court on this issue), at pp. 202-204;
Cloutier
    v. The Queen
, [1979] 2 S.C.R. 709, at pp. 735-36; see also
R. v. Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 87-89.

[70]

Evidence of an accuseds disposition, particularly if that
    evidence consists, as it usually does, of discreditable conduct, is generally
    inadmissible against an accused. Its exclusion is justified either because it
    is irrelevant to a fact in issue, or even if relevant, its potential
    prejudicial effect outweighs the potential probative value:
Handy
, at paras. 31-40;
R. v. Johnson
, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras.
81-89
.

[71]

In
Handy
, the accused was charged with sexual assault causing bodily
    harm. The Crown sought to lead evidence from the accuseds former wife of seven
    incidents in which he had allegedly physically and sexually abused her. The
    Crown argued that the evidence was admissible to show that the accused took
    pleasure from sex that was painful to his partner and would not take no for an
    answer from that partner. The Crown in this case would describe this sexual
    proclivity as the accuseds motive.

[72]

With
    his customary clarity, Binnie J. explained why the assaults on the ex-wife were
    not relevant to the charge before the court, at para. 86:

At a more specific level, it is alleged here that the
    propensity to violence emerges in this respondent in a desire for hurtful sex.
This
    formulation provides more context, but the definition of so general a
    propensity is still of little real use, particularly when it is sought to use
    propensity not to predict future conduct in a general way, but to conclude
    that the respondent is guilty of acting in a specific way under the specific
    circumstances on December 6, 1996 alleged by this complainant.
[Emphasis added.]

[73]

Justice
    Binnie has put his finger directly on the reason the evidence of the
    appellants possession of child pornography is not relevant to the charges in
    counts 1-3. Even if that evidence shows a general propensity to engage in
    sexual activity with children such that one could say that it supports the
    inference that the appellant has at some time, or will at some time, engage in sexual
    activity with children, the evidence of his possession of the child pornography
    does not say anything about what the appellant did on the specific occasions referred
    to by L.F. Indeed, the argument for admissibility was stronger in
Handy
,
    given that the evidence was based on actual prior assaultive behaviour, as
    opposed to the evidence of the appellants possession of child pornography
    which potentially shows only an interest in engaging in sexually assaultive
    behaviour: see also
R. v. W.B.
(2000), 145 C.C.C. (3d) 449 (C.A.), at
    paras. 97-101;
R. v. C.J.
, 2011 NSCA 77, 276 C.C.C. (3d) 454, at
    paras. 35-39.

[74]

In
    coming to the conclusion that evidence of the appellants possession of child
    pornography was not relevant on counts 1-3, I stress the absence of any
    evidence linking that possession to the allegations in those counts. For
    example, unlike the evidence in
C.J.
, there was no suggestion that the
    appellant showed L.F. child pornography or somehow used it as a prelude to the
    assaults: see also
R. v. Thompson
,
[1918] A.C. 221 (H.L), per Lord Sumner, at pp. 233-35. I would add that even if
    there was evidence connecting the appellants possession of child pornography
    to the alleged abuse of L.F. that connection would establish relevance, but
    would not necessarily make the evidence admissible. A trial judge would still
    have to decide whether the probative value of that evidence outweighed its
    obvious prejudicial effect: see
C.J.
,
    at paras. 32-46.

[75]

The
    admission of the evidence of the child pornography through the detailed
    descriptions provided by the investigating officer posed two significant
    dangers to the appellants right to a fair trial on counts 1-3. First is moral
    prejudice. If the jury was satisfied the appellant was in possession of the material
    described by the officer, the jury would no doubt infer that the appellant watched
    the material and enjoyed watching it. Those inferences would inevitably lead
    the jury to view the appellant as a despicable and potentially dangerous
    person. Viewing the appellant through this moral and emotional lens, a jury might
    not be inclined to vigorously apply concepts like the presumption of innocence that
    are intended to protect the appellant.

[76]

On
    top of the moral prejudice flowing from the nature of the material, there was a
    real risk of reasoning prejudice. Specifically, that the jury would use
    evidence of the appellants possession of child pornography as evidence that he
    had committed the acts alleged in counts 1-3. Disposition based reasoning,
    while generally not permitted to establish criminal liability, is hardly foreign
    to the reasoning processes that jurors use in their day-to-day lives. Again, I
    borrow the words of Binnie J. from
Handy
, at para. 39
:

It is, of course, common human experience that people generally
    act consistently with their known character. We make everyday judgments about
    the reliability or honesty of particular individuals based on what we know of
    their track record. If the jurors in this case had been the respondents
    inquisitive neighbours, instead of sitting in judgment in a court of law, they
    would undoubtedly have wanted to know everything about his character and
    related activities. His ex-wifes anecdotal evidence [the disposition evidence]
    would have been of great interest. Perhaps too great

[77]

The
    potential prejudice to the appellant on counts 1-3 of the evidence of his
    possession of child pornography was, in my view, very real and potentially
    insurmountable. It probably would have been better had count 4 been severed
    from counts 1-3. There was no severance application and the trial judge cannot
    be criticized for failing to sever on her own initiative.

[78]

The
    trial judge was faced with a single trial on all four counts. The appellants
    possession of child pornography was central to the verdict on count 4. In that
    circumstance, only a clear, sharp and emphatic instruction to the jury that it
    could not use the evidence of the appellants possession of child pornography in
    any way in determining culpability on counts 1-3 could have overcome the
    potential prejudice of that evidence to the appellant on counts 1-3. The trial
    judge had to expressly tell the jury that if they found that the appellant was
    in possession of the child pornography, that finding was not evidence in
    relation to counts 1-3 and could play no role of any kind in the jurys
    determination whether the Crown had established the appellants guilt on counts
    1-3. The trial judges instruction to the jury to consider each count separately,
    and her subsequent instructions that followed that approach did not provide an adequate
    safeguard against the potential misuse on counts 1-3 of the evidence that the
    appellant was in possession of child pornography. The convictions on counts 1-3
    cannot stand.


IV



THE SENTENCE APPEAL

[79]

The
    trial judge gave the appellant 2:1 credit for 71 days served after his arrest
    and before his release on bail (142 days credit). The trial judge, however,
    only gave 1:1 credit for the 128 days the appellant served between his
    conviction and sentence. The reasons for sentence do not address the different
    treatment of these two time periods.

[80]

Counsel for the Crown and the appellant agree that based on
R. v.
    Summers
, the appellant should have been given 2:1 credit for the entire
    period of presentence custody. He is entitled to a further 128 days credit. Giving
    him that credit, I would reduce his sentence on the possession of child
    pornography charge to time served.


V



CONCLUSION

[81]

I
    would allow the conviction appeal on counts 1-3, quash those convictions and
    order a new trial. I would dismiss the conviction appeal on count 4. I would allow
    the sentence appeal on count 4 and vary the sentence to time served.

RELEASED: DD  JUN 04 2015

Doherty J.A.

I agree E.A. Cronk
    J.A.

I agree C.W. Hourigan
    J.A.





[1]
In out-of-court statements, L.F. had referred to the appellant watching adult
    pornography in her presence. She did not give that evidence in her trial
    testimony.


