



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    the complainant or a witness shall not be published in any document or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. J.R.M., 2015 ONCA 229

DATE: 20150408

DOCKET: C58274

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.R.M.

Appellant

Lauren M. Wilhelm, for the appellant

Joanne K. Stuart, for the respondent

Heard: March 31, 2015

On appeal from the convictions entered by Justice Kim A.
    Carpenter-Gunn, of the Superior Court of Justice, sitting with a jury, on September
    20, 2013 and the sentences imposed by Justice Carpenter-Gunn on October 18,
    2013.

ENDORSEMENT

[1]

Following a trial by judge and jury, the appellant was convicted
    of two counts of sexual interference involving S.K. and C.K., the two young daughters
    of his girlfriend.  S.K. was five years of age and C.K. was four years old at
    the time of the offences.
The appellant was
    acquitted of one count of assault in respect of each of the complainants.  He
    received a global sentence of five years imprisonment: two and one-half years,
    consecutive, on each sexual interference conviction.

[2]

The appellant appeals from his
    convictions and seeks leave to appeal his sentences.

[3]

The appellant submits that:

i)     the trial judge erred in failing to instruct the
    jury that the evidence of one complainant was not admissible on the counts
    relating to the other, and that it could not use propensity reasoning to
    support its verdicts;

ii)    the
    trial judge erred in admitting the out-of-court statements of S.K. to her
    grandparents as evidence of the truth of their contents; and

iii)    the
    jury instruction on the manner in which the jury should assess the evidence of
    S.K.s hearsay statements was fatally flawed.

[4]

We see no merit in the second and third
    submissions.  We agree with the trial judges ruling admitting S.K.s
    statements to her grandparents for their truth.  The instruction on those
    statements was adequate and there was no objection to it at trial.

[5]

We are, however, satisfied that the
    first ground of appeal must succeed.

CONVICTION APPEAL

[6]

Relying on the decision of this court
    in
R. v. M.(B.)
(1998), 130 C.C.C.
    (3d) 353 and other cases to the same effect, the appellant argues the trial
    judge erred in law by failing to instruct the jury it could not use the
    evidence relating to one count as evidence on the other counts, or use the
    evidence relating to one set of allegations concerning one complainant as bad
    character or propensity evidence in its consideration of the allegations
    regarding the other complainant.

[7]

In this case, the complainants
    allegations against the appellant were joined in one indictment.  The Crown did
    not bring a similar act application and the defence did not seek a severance. 
    Accordingly, the jury heard all the Crowns evidence in respect of all
    allegations in the same trial.

[8]

The complainants first disclosed the
    appellants abuse during a weekend visit with their paternal grandparents. 
    While S.K. and C.K. were watching television with their grandfather, S.K. described
    the appellants sexual abuse.  Within minutes, C.K. indicated that the
    appellant had sexually abused her too.  The core of the complainants
    descriptions of the sexual abuse was essentially identical.  Later, at their
    grandfathers request, the girls repeated their allegations to their
    grandmother.  When the police became involved shortly thereafter, both
    complainants provided videotaped statements in which they implicated the
    appellant in sexual abuse.

[9]

At trial, C.K. adopted her statement to
    the police and repeated her allegations of sexual abuse by the appellant.  S.K.
    also testified at trial.  However, she gave no evidence of any sexual
    misconduct by the appellant.  Pursuant to the trial judges ruling, S.K.s
    description of the appellants sexual conduct with her was led through the
    testimony of S.K.s paternal grandparents about S.K.s out-of-court statements
    to them.

[10]

The appellant also testified.  He
    denied any wrongdoing.

[11]

In her charge, the trial judge gave
    neither of the warnings mandated by
M.(B.).
Specifically, she did not instruct the jury that it was
    to consider each charge separately and not use evidence relating to one count
    as evidence on any of the other counts.  Nor did she tell the jury that it
    could not use the evidence on one count as proof that the appellant is the sort
    of person who would commit the offences charged.

[12]

In this case, given the interrelated
    nature and timing of the young complainants disclosure of the appellants
    abuse to their grandparents, and the substantive similarity of their
    allegations, there was little danger that the jury would engage in the type of
    prohibited propensity reasoning contemplated in
M.(B.)
.
See also
R. v. Rarru
, [1996] 2 S.C.R. 165.

[13]

However, in our view, there was a real
    danger that, absent the proper limiting instructions, the jury would engage in
    a global assessment of the complainants credibility on the sexual interference
    allegations.  This danger was heightened by the fact that the Crowns case in
    respect of S.K.s allegations depended entirely on hearsay, while the Crowns
    case pertaining to C.K.s allegations rested on her in court testimony. 
    Potentially, therefore, the Crowns case was much stronger in respect of C.K.

[14]

Where, as here, a case involves
    multiple counts of sexual abuse and multiple complainants, it is incumbent on
    the trial judge to warn the jury that it cannot use the evidence on all the
    counts to prove any one count:
M.(B.)
,
at para.
41;
R. v. H.(F.J.)
(2000), 145 C.C.C. (3d) 169, (Ont. C.A.),
    at para.
12.  As we have said, this did
    not occur here.

[15]

The Crown acknowledges on appeal that
    the cross-count instruction normally should be given.  However, Crown counsel argues
    that the adequacy of the jury charge must be assessed from a functional
    perspective to determine whether it properly equipped the jury to perform its
    task.  She contends that, in the unique circumstances of this case and when the
    charge is read as a whole, the jury would have understood that it could not
    consider the evidence of one complainant as corroborative of that of the other.

[16]

In support of this contention, Crown
    counsel relies on: i) the structure of the jury charge, in which the trial
    judge examined each count, and much of the evidence related to each count,
    separately and sequentially; ii) Crown counsels warning, in his closing
    address to the jury, against the use of evidence pertaining to one count as
    corroborative of the other counts; iii) the propensity instruction provided to
    the jury regarding the appellants criminal record; iv) the fact that the
    appellant was acquitted on the two assault charges, suggesting the jury
    considered the evidence on each count separately; and v) the appellants
    failure to request the limiting instruction in question and his related failure
    to object to its absence from the jury charge.

[17]

We accept that the jury charge must be
    read as a whole and from a functional perspective.  However, none of the
    factors identified by Crown counsel, either alone or cumulatively, cures the
    non-direction in this case.  Indeed, virtually all the factors relied on by the
    Crown, described above, were considered, and specifically rejected, by this
    court in
H.(F.J.)

as insufficient to
    overcome the type of non-direction at issue here:
H.(F.J.)
,
at para. 17 (regarding the structure and contents of the
    jury charge); at para. 20 (concerning warnings about the law provided by
    counsel in their closing addresses to the jury); and at paras. 22-23 (regarding
    the acquittal of an accused on some charges and his convictions on others, on a
    multi-count indictment).

[18]

In the circumstances of this case, the
    non-direction at issue is fatal to the sexual interference convictions.  As in
H.(F.J.)
,
the problem with the charge here, is
    its silence about what the jury could not do with the evidence of one
    complainant in relation to that of the other.  And, again as in
H.(F.J.)
,
given the similarities between S.K.s and C.K.s
    allegations, there was a real danger that, absent adequate warning, the jury
    might improperly consider the evidence of one of the complainants as
    corroborative of that of the other.

[19]

We are unable to conclude that there is
    no reasonable possibility that the jury could have returned different verdicts
    on the sexual interference charges.  Accordingly, this is not an appropriate
    case for application of the proviso.  See
H.(F.J.)
,
at paras. 24-25.

Disposition

[20]

The conviction appeal is allowed and a
    new trial is ordered on the two sexual interference counts.  In light of this
    disposition, we do not reach the appellants application for leave to appeal
    sentence.

Doherty
    J.A.

E.A.
    Cronk J.A.

C.W.
    Hourigan J.A.


