



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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.





CITATION: R. v. M.B., 2011
          ONCA 76





DATE: 20110127



DOCKET: C50391



COURT OF APPEAL FOR ONTARIO



Laskin, Goudge and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



M. B.



Appellant



Catriona Verner, for the appellant



John Pearson, for the respondent



Heard: December 7, 2010



On appeal from the conviction
          entered on January 15, 2008, by Justice Robert A. Clark sitting with a jury and
          from the sentence imposed on August 18, 2008, by Justice Robert A. Clark and
          from the conviction entered on June 8, 2008, by Justice Nancy J. Spies of the
          Superior Court of Justice.



Goudge J.A.:



[1]

On January 15, 2008, after a trial by judge and jury, M.B. was convicted
    of one count of sexual touching and one count of sexual assault in relation to
    each of his two nieces, K.B. and J.B. He was subsequently sentenced to six
    years imprisonment. On June 8, 2008, after a second trial by judge alone, he
    was convicted of sexual touching and sexual assault in relation to his nephew
    C.B., for which he received a three year sentence.

[2]

He appealed both his convictions and his six-year sentence in the first
    trial.

[3]

On December 9, 2010, this court allowed his appeals from conviction and
    ordered new trials in each case. It was therefore unnecessary to deal with his
    sentence appeal. The court issued brief reasons for its decision, with fuller
    reasons to follow. These are those reasons.

THE FIRST TRIAL

[4]

The complainants K.B. and J.B. are daughters of the appellants brother.
    On two occasions when the girls were young, the appellant lived with his
    brothers family, each time for several months.

[5]

K.B. and J.B. were the Crowns only witnesses at trial. The trial judge
    ruled that the evidence of each could be used by the jury as similar fact
    evidence in evaluating the evidence of the other.

[6]

Their allegations were first disclosed to their mother during a visit to
    the home of a family friend in 2005. At the time, K.B. was nine years old and
    J.B. was eleven.

[7]

According K.B., she and her sister were in a room with a young girl of
    the family they were visiting when K.B. first disclosed that she had been raped
    by their uncle, the appellant. She said that J.B. then first disclosed that she
    too had been raped by their uncle, and immediately went to tell their mother.
    J.B. testified that K.B. disclosed her allegations directly to their mother
    while J.B. was listening, and that she then did the same.

[8]

At trial, K.B.s evidence on the sexual touching count was that on one
    occasion, in 2003 or 2004, the appellant came into her room in the morning,
    picked her up, placed her on his lap facing him, and raped her. She could
    remember very little about the incident itself. She said it hurt a little not
    a lot. She went back to sleep and when she woke had no memory of the assault.
    She did not bleed and had no other injuries. She did not remember the incident
    until a few months later.

[9]

On the sexual assault count, K.B. testified that the appellant touched
    her legs on more than one occasion, although she was uncertain how many. Again,
    she recalled few details, but said that he did not stop when she told him to.
    She said that although she shared a room with J.B., her sister was not there
    during any of these incidents. J.B., on the other hand, testified not only that
    she witnessed the appellant touching K.B.s legs on various occasions, but that
    she attempted to wake her sister during the assaults.

[10]

J.B.s evidence of sexual touching was that the appellant had sexual
    intercourse with her on seven occasions. She described one occasion where he
    put her on the counter in the bathroom and raped her. She said it hurt but
    there was no bleeding. She did not see a doctor or tell anyone about the
    incident. She recalled no other details and gave almost no details at all about
    the other six assaults except the city that they were living in when the first
    of these occurred. That put the incident in 1999 when she was five or six years
    old.

[11]

On the sexual assault count, she testified that the appellant had
    touched her leg inappropriately on a number of occasions. In particular, he had
    touched her between her ankle and her knee.

[12]

The appellant testified and denied ever touching either girl
    inappropriately.

[13]

Following the address by the defence, the address by the Crown (about
    which more is said below) and the charge, the jury retired to deliberate. When
    they returned they informed the court that they could not agree on a verdict
    with respect to some of the counts. They were exhorted, and later returned with
    convictions on all four counts.

THE SECOND TRIAL

[14]

At his second trial, which was before a judge
    alone, the appellant was convicted of sexually assaulting and sexually touching
    C.B., the older brother of K.B. and J.B.

[15]

The Crowns primary witness was C.B. However,
    the trial judge permitted the Crown to adduce the evidence of K.B. and J.B. as
    similar fact evidence. The appellants trial counsel did not require the two
    girls to testify again, but permitted the court to rely on the transcript of
    their evidence in the first trial. The appellant testified and denied C.B.s
    allegations.

[16]

The trial judge concluded that, without the
    similar fact evidence, she would have acquitted the appellant. However, she
    held that, as a matter of law, the appellant could not re-litigate the jurys
    verdict in the first trial. She therefore accepted the jurys findings in that
    trial as proof of the fact that the appellant sexually assaulted K.B. and J.B. Thus,
    at his second trial, the appellant was not permitted to contest the evidence of
    K.B. and J.B. As a result, the trial judge convicted the appellant.

THE FIRST APPEAL

[17]

In the brief decision released December 9, 2010,
    we outlined our three reasons for setting aside the appellants convictions for
    sexual touching and sexual assault of K.B. and J.B. and ordering a new trial.
    The following is an elaboration of those earlier reasons.

[18]

Our first reason concerns the risk of innocent
    collusion or influencing of each other by K.B. and J.B. in giving their accounts
    about what the appellant did to them.

[19]

Even without deliberate tainting by others of a
    witnesss evidence, innocent influencing of that evidence sufficient to affect
    its reliability can arise in certain circumstances. In
R. v. J.F.
(2003), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77, this court described the
    concern this way:

The trial judges finding that B.H.
    was sincere, a straight shooter, and not influenced by E.T. and the others,
    fails to take into account that collusion and discussion among witnesses can
    have the effect of tainting a witnesss evidence and perception of events
    innocently or accidentally and unknowingly, as well as deliberately and
    intentionally. The
reliability
of a witnesss account can be undermined
    not only by deliberate collusion for the purpose of concocting evidence, but
    also by the influence of hearing other peoples stories, which can tend to
    colour ones interpretation of personal events or reinforce a perception about
    which one had doubts or concerns. [Emphasis added.]

[20]

In this case, there are five circumstances that together raise the
    possibility of innocent tainting. First, there is some evidence that when they
    revealed what happened to them, K.B. and J.B. had an opportunity, albeit
    limited, to talk with each other about their experiences. Second, in describing
    what happened they both used identical words and phrases (he raped me, he
    put his dick in my bumb) that are not commonly used by young girls of that
    age. Indeed, in the pre-charge discussion with counsel, the trial judge
    indicated that he found this odd and a little disquieting.

[21]

In the pre-charge colloquy, defence counsel (not Ms. Verner) appeared to
    be of the view that only intentional collusion entitled her to ask for an
    instruction on collusion. Hence she made no request for any caution on innocent
    tainting. She and the Crown agreed that no such caution was necessary. As a
    result, the trial judge limited his charge in this area to the usual similar
    fact warning. He instructed the jury that if they found any collaboration by
    K.B. and J.B., they must not use the evidence of one complainant to help decide
    if the other was telling the truth. There was no caution about the possibility
    of innocent tainting of each other by K.B. and J.B. and the relevance of that
    to the assessment the jury was required to make of the reliability of the
    evidence of each of them. In our view, such a caution was warranted in this
    case.

[22]

Our second reason concerns whether the specific frailties of the
    evidence of K.B. and J.B. warranted a caution beyond the generic charge
    concerning youthful witnesses that they do not always have the same ability to
    recall past events with precision, possibly leading to certain inconsistencies
    in their testimony. The trial judge gave the generic instruction. Defence
    counsel did not ask that he caution the jury about the specific frailties they
    might find in the evidence given by K.B. and J.B., especially in light of their
    ages at the time of the events about which they testified. The trial judge did
    not address this issue.

[23]

However, there are a number of particular aspects of their evidence that
    cause concern. For K.B., these include that the rape she described hurt only
    a little and caused no injury despite her very young age; that she went back to
    sleep right afterwards; that she remembered nothing for a month; that she could
    not say on how many occasions the appellant touched her on the leg; and that for
    all the alleged occurrences she could remember very little detail.

[24]

For J.B., there was a similar absence of any detail. She also testified
    that she often slept in her parents bedroom to avoid the appellant. As the
    trial judge said, this was odd, since she also said she was in her own bedroom
    on various occasions when the appellant was allegedly rubbing her sisters legs
    and tried to wake her sister during these assaults.

[25]

These frailties were captured by the trial judge in making his findings
    of fact necessary to sentence the appellant. He summed up his concerns this
    way:

Again, while I do not wish to be taken as saying
    that I disbelieve their evidence, I am sufficiently troubled by the evidence of
    the two young girls, particularly that of J.B., that I am reluctant to rely on
    their accounts beyond the extent to which I am bound to do so by the jurys
    verdicts.

[26]

In these circumstances, it is our view that a specific caution was
    warranted to outline for the jury the risks of accepting the evidence of these young
    complainants. As McLaughlin J. pointed out in
R. v. Marquard
, [1993], 4
    S.C.R. 223, at p. 239, while the evidence of children is not to be approached
    from the perspective of rigid stereotypes, there will be cases where the
    particular evidence given by a particular child witness is such that failure to
    give such a caution will raise the spectre of an injustice and may therefore
    result in reversible error.

[27]

The third reason for our decision is the most important. It concerns the
    closing address by the Crown.

[28]

The first aspect of that address that causes concern is the highly
    emotive and inflammatory language used by the Crown. The appellant was
    described as a predator, and the incidents as terrifying, horrifying to
    imagine, horrifying events, unspeakable and horrific sexual abuse. This
    kind of rhetoric has absolutely no place in the closing address of the Crown.
    Such an appeal to passion seeks to completely deflect the jury from their
    proper role, to dispassionately assess the evidence they have heard.

[29]

After the Crown concluded, and to his credit, the trial judge in the
    absence of the jury severely chastised the Crown. The defence did not move for
    a mistrial. Nonetheless, the trial judge agonized during the lunch break over
    whether to order a mistrial on his own motion. He ultimately decided not to,
    feeling that he could undo the damage with his instructions to the jury. He
    concluded his charge with a very strong direction to the jury to pay no
    attention to these aspects of the Crowns address.

[30]

If that were the only problem with the address we would not be quite so
    concerned. However, there is another particularly troubling aspect of the
    Crowns closing. It is the way the Crown addressed the issue of the
    complainants motive for revealing their stories about what their uncle had
    done to them. The Crown told the jury that no reason for the girls fabricating
    these allegations emerged because there was no such reason since the girls were
    telling the truth. She said this:

However, its not improper for me to ask you to
    reflect on the fact that no reason emerged as to why J.B. or K.B. would
    fabricate these horrible allegations. I would submit to you no apparent motive
    was revealed from their evidence or their admissions, because quite frankly
    there isnt one, the girls are telling the truth.

[31]

The concern raised by these submissions is aptly captured by the words
    of this court in
R. v. L.L.
(2009), 244 C.C.C. (3d) 149 (Ont. C.A.), at
    para. 42:

The difficulty with these comments is twofold.
    First, they appear to suggest that the Crown proved lack of motive to fabricate
    when the evidence was not capable of supporting such a finding. Second, by
    asking highly  emotive rhetorical questions concerning why the complainant
    would create various negative consequences for herself, the Crown created a
    risk that the jury would jump to a conclusion that the complainant must be
    telling the truth if there was no demonstrated motive to lie.

[32]

The court went on at para. 53 to outline the minimum corrective
    instruction that should be given in such circumstances:

At a minimum, the corrective instructions should
    have addressed the following matters:

·

Because a persons motives can sometimes be hidden, there is a
    difference between absence of apparent motive and proven absence of motive;

·

Although the defence had raised some possible motives for the
    complainant to fabricate her evidence, depending on their view of the evidence,
    it was open to the jury to find an absence of any apparent motive on the part
    of the complainant to fabricate;

·

Although absence of apparent motive to fabricate is a proper
    factor to consider in assessing the credibility of the complainant, it is but
    one of many factors to be considered; and

·

Whatever their view of the evidence relating to the complainants
    motive to fabricate, it was essential that the jury bear in mind that the
    accused has no obligation to prove a motive to fabricate and that the onus
    remains on the Crown throughout to prove guilt beyond a reasonable doubt.

[33]

The trial judge did not have the benefit of this courts judgment in
R.
    v. L.L.
and no such instruction was given.

[34]

As we indicated in our earlier reasons, we are of the view that the
    cumulative impact of these various errors is such that the appellant cannot be
    said to have received a fair trial. His convictions must be set aside and a new
    trial ordered.

THE SECOND APPEAL

[35]

As we said in our earlier reasons, and as the
    Crown fairly acknowledged, the trial judge in the appellants second trial
    erred in law in holding that the jurys verdict in his first trial put beyond
    his challenge in his second trial the evidence of K.B. and J.B. that the
    appellant had sexually assaulted them. That holding was legally wrong because
    in criminal law the principle of issue estoppel cannot be permitted to be used
    to free the Crown from proving every element of its case beyond a reasonable
    doubt. In
R. v. Mahalingan
, [2008] 3 S.C.R. 316, McLachlin C.J. put it
    this way at para. 57:

Mutuality, at its most basic level, simply means
    that the parties in the two proceedings must be the same: see
CUPE
; H.
    Stewart, Issue Estoppel and Similar Facts (2008), 53 Crim. L.Q. 382, at p.
    383.  It has sometimes been understood, however, in the broader sense of
    requiring that the principle of issue estoppel apply to both parties in
    identical fashion.  In this sense, mutuality has never been part of Canadian
    criminal law, which recognizes that the presumption of innocence and the
    requirement that the Crown must prove every element of its case beyond a
    reasonable doubt trump issue estoppel.  Where the Crown seeks to estop an
    accused from contesting this innocence based on decisions against the accused
    in prior criminal proceedings, the claim for estoppel will fail.  To permit the
    Crown to rely on issue estoppel in these circumstances would offend the
    presumption of innocence and the requirement that the Crown in a criminal
    proceeding bears the burden of proving its case beyond a reasonable doubt.

[36]

The trial judge relied on the similar fact evidence of K.B. and J.B. to
    convict and made clear that without that evidence she would not have done so.
    This error therefore requires that the appellants conviction be set aside and
    a new trial ordered.

[37]

In summary, for these reasons, both appeals are allowed, the convictions
    set aside and new trials are ordered.

RELEASED: JAN 27 2011 (J.I.L.)

S.T.
    Goudge J.A.

I
    agree. J.I. Laskin J.A.

I
    agree. G.J. Epstein J.A.


