



WARNING

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

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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    that could identify the victim or a witness shall not be published in any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

(a)      any of the following offences;

(i)       an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the conduct
    alleged involves a violation of the complainants sexual integrity and that
    conduct would be an offence referred to in subparagraph (i) if it occurred on
    or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the administration
    of justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.H., 2020 ONCA 1

DATE: 20200102

DOCKET: C64337

van Rensburg, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.H.

Appellant

Catriona Verner, for the appellant

Joanne K. Stuart, for the respondent

Heard: December 9, 2019

On appeal from the conviction entered on January 25, 2017
    by Justice Wolfram U. Tausendfreund of the Superior Court of Justice, sitting
    with a jury.

Benotto J.A.:

[1]

A jury found the appellant guilty of sexual interference and incest in
    relation to one of his daughters. The complainant alleged that he had touched
    her and engaged in sexual intercourse with her over a period of years, up to
    the night before she disclosed the alleged abuse. The defence theory at trial
    was that the complainant had fabricated her allegations so that her mother, who
    was travelling for work, would return home.

[2]

The appellant alleges that the trial judge erred by: (i) allowing the
    Crown to cross-examine him about why his daughter would lie; (ii) failing to
    properly instruct the jury with respect to consistent and inconsistent
    statements of the witnesses; (iii) permitting the Crown to violate the rule in
Browne
    v. Dunn
(1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.); and (iv)
    misstating the evidence during his charge to the jury.

[3]

As I will explain, the cross-examination of the appellant about the
    complainants motive to lie was improper and prejudicial and the trial judges
    failure to instruct the jury on a prior inconsistent statement of a witness was
    an error of law. Taken together, these errors require a new trial. It is
    therefore not necessary to address the other grounds of appeal.

FACTS

[4]

The appellant lived with his wife and three daughters. In June 2011, his
    wife started a new job in Alberta that required her to be away from home for
    two weeks at a time. The complainant missed her mother very much.

[5]

A family friend, S.C., and her son lived with the appellant and his
    family. S.C. was close to the complainant and was like a second mother. In
    September 2014, the appellant began having an affair with S.C.

[6]

The complainant is the youngest of three daughters. She alleged that,
    beginning when she was six years old, the appellant touched her crotch in his
    room and in the backyard pool. Beginning when she was nine years old, he had
    intercourse with her several times, sometimes using a purple vibrator and
    Vaseline. He never used a condom and used a towel to wipe down the vibrator and
    himself. He would give her cash afterwards.

[7]

On March 3, 2015, the complainant disclosed the abuse to friends, a
    teacher, and the police. She told the police that intercourse had occurred the
    night before in the appellants bed.

[8]

The appellant was arrested the same day. S.C. was interviewed and
    told the police that the night before  on March 2, 2015  the complainant
    started out sleeping in her bed but got up in the night to go and sleep in the
    appellants bed.

[9]

The police searched the home and found a purple vibrator, Vaseline, and
    a towel near the appellants bed. One of the complainants pillows was on the
    bed.

[10]

DNA
    testing on the seized items showed the following:

·

The
    complainants DNA was not found on the vibrator, Vaseline or towel.

·

The
    appellants DNA was found on the complainants neck but not her genitalia. (He
    testified that he had kissed her when she left for school that day).

·

The
    appellants DNA was found on the vibrator, as was female DNA that did not match
    the complainant.

·

A
    small amount of semen, Vaseline and male DNA was found on the outside of the
    complainants vagina. No semen was found on internal and external vaginal
    swabs.

·

Semen
    was found on the crotch of the complainants underwear.

[11]

A
    physician examined the complainant but could not confirm whether she had been
    assaulted or whether she had ever engaged in intercourse.

THE TRIAL

Cross-examination of the appellant

[12]

At
    trial, defence counsel (not appellate counsel) cross-examined the Crown
    witnesses on the fact that the complainant had difficulty with her mother being
    away from home and that her mother had returned home immediately as a result of
    the allegations. The appellant, who testified at trial, did not state in his
    direct evidence that he thought the complainant fabricated the allegations to
    bring her mother home, or at all. His counsel had raised this as a theory in
    her cross-examination of the complainant and other Crown witnesses. However,
    the Crown cross-examined the appellant as follows:

Q. So, if we believe what youre indicating and that this never
    happened, [the complainant is] what, fabricating these allegations?

A. Yeah, obviously.



Q. She missed her mom so much that she made up these
    allegations against you, is that your understanding?

A. I would hope that she didnt,
    but it sure appears that way, yes. Im going to say, yes. She missed her
    mother. She wanted her mother home and yes, I believe that the easiest way to
    make sure her mother stayed home and did not go back out west was to ensure
    that there was a reason for her to stay here.

[13]

Defence
    counsel interjected as follows:

[CROWN]: Your Honour theres an objection.

[DEFENCE]: Your Honour my friend has canvassed this area with
    my client and he ....

THE COURT: Im sorry?

[DEFENCE]: My friend has canvassed this with my client. He has
    answered the questions. I dont think that he can know with any detail what was
    in his daughters head. He has answered the question and ....

THE COURT: Well, thats likely so,
    yes, but I think its relevant what [the appellant] believes that her
    motivation might have been. Its not about what was in her head, but what he
    believes. Please continue.

[14]

The
    questioning continued, and the Crown ended the cross-examination as follows:

Q: Im going to suggest to you the reason why she said the
    things that she did is because they are true?

A: They are not true. I did not sexually assault my daughter.

Q: And nothing else makes sense given what weve heard over the
    course of this trial. Isnt that correct?

A: I cant answer that question.

The prior inconsistent statement

[15]

Where
    the complainant slept on March 2, 2015 (the night before the disclosure) became
    a significant issue at trial.

[16]

The
    complainant testified that she slept in the appellants bed where she woke up.

[17]

Both
    of the complainants sisters testified that the complainant slept in S.C.s
    bed. One sister testified that she explicitly remembered going to S.C.s room
    to wake the complainant for school. The other sister, a Crown witness,
    testified that she did not remember the complainant ever sleeping in the
    appellants room, let alone that night  except perhaps when she was sick.

[18]

S.C.
    testified that the complainant slept with
her
that night. She was
    cross-examined about the police statement where she had stated that the
    complainant started the night with her but got up during the night and went to
    the appellants room. She explained that, when she gave the statement on March
    3, 2015, she was confused as a result of the allegations, did not think there
    was any significance to the sleeping arrangements, and was in error. She did
    not adopt the prior inconsistent statement.

Crown closing

[19]

The
    Crown relied on the cross-examination of the appellant in closing submissions:

The Defence will have you believe that [the complainant]
    fabricated or made up these allegations because she missed her mother, wanted
    her back home. I ask you to apply your common sense and ask yourself does that
    make sense?



Is it logical that [she] waits
    five years before saying anything and at the age of eleven concocts this entire
    elaborate extreme plan just to get her mother home? No.

[20]

The
    Crown also asked the jury to disbelieve the sisters, the appellants and
    S.C.s trial testimony, and instead rely on S.C.s prior inconsistent
    statement, which on its face would corroborate what [the complainant] was
    saying.

The jury charge

[21]

The
    trial judge referred to the cross-examination of the appellant concerning the
    complainants motive to fabricate, and specifically invited the jury to
    consider this evidence in assessing the appellants guilt:

When asked about [the
    complainants] allegation of sexual touching and intercourse with him, he
    agreed with the Crown that [she] missed her mother, wanted her home and that
    she made up this evidence, he stated, to have her mom return from Alberta.

[22]

The
    trial judge also referred to S.C.s prior inconsistent statement when reviewing
    the evidence at trial. He stated:

[S.C.] agreed that in her statement
    of March 3
rd
, [the complainant] had gotten up during the night and had
    gone to her fathers room. She stated that this however was not correct. She
    had planned on correcting that statement at the time of the preliminary inquiry
    when she testified. However she did not as she was not asked about it.

[23]

The
    trial judge did not provide the jury with a limiting instruction regarding the
    use that could be made of the prior inconsistent statement.

DISCUSSION

The cross-examination of the appellant

[24]

This
    court has consistently held that it is improper to call upon an accused to
    comment on the credibility of his accusers: see
R. v. Rose
(2001), 53
    O.R. (3d) 417 (C.A.), at para. 27. In
R. v. L.L.
, 2009 ONCA 413, 96
    O.R. (3d) 412, Simmons J.A. explained the twofold rationale to preclude this
    line of questioning: it is improper for a witness to remark on another
    witnesss truthfulness and there is a risk the burden of proof may be
    improperly shifted to the accused. Moreover, in a jury trial, this type of
    questioning may lead the jury to draw an adverse inference if the accused is
    unable to provide a compelling answer for why the complainant made the
    allegations. A more comprehensive discussion of these concerns appears at
    paras. 15-16:

First, as a general matter, it is improper to
    invite one witness to comment on the veracity of another. This principle has
    particular application to an accuser and the accused. As noted by Charron J.A.
    in
R. v. Rose
, (2001),
2001 CanLII 24079
    (ON CA)
, 53 O.R. (3d) 417 (C.A.) at para.
27
,
    this court has held repeatedly that it is improper to call upon an accused to
    comment on the credibility of his accusers.

Second, questions of
    this type create a risk of shifting the burden of proof because they may
    mislead the trier of fact into focusing on whether the accused can provide an
    explanation for the complainants allegations instead of focusing on the
    central issue of whether the Crown has proved beyond a reasonable doubt that
    the allegations are true. As this court said in
R. v. F.(C.)
, [1996] CanLII 623 (Ont. C.A.), such questions create a risk that the
    jury may draw an adverse inference if the accused fails to provide a reasoned
    or persuasive response. [Citations omitted.]

[25]

In
R. v. T.M.,
2014 ONCA 854, leave to
    appeal refused, [2015] S.C.C.A. No. 110, this court explained the scope of
    permissible questions
about a complainants motive to fabricate.
    Questions that explore the nature of the
relationship
between the
    appellant and the complainant are proper. These questions elicit information
    within the appellants knowledge: at para. 40. However, questions that go to
    motive become improper when they go beyond eliciting facts known to the
    accused and instead invite the accused to speculate: at para. 41.

[26]

The
    Crown submits that the cross-examination was proper because defence counsel had
    raised recent fabrication and offered the motive for the fabrication. Thus, the
    Crown was entitled to explore this line of questioning in the cross-examination
    of the appellant.

[27]

I
    do not agree.

[28]

The
    questions were improper. The questions did not concern the relationship between
    the family members, but rather asked the appellant to offer an explanation for
    the complainants allegations. In asking the appellant about why the
    complainant made the allegations, the Crown stated, nothing else makes sense
    given what weve heard. As a result, the questions caused the appellant to
    speculate about the reasons for the accusation and to come up with a reason
    that makes sense.

[29]

The
    trial judges comments in response to defence counsels objection cemented the
    unfairness when he said that the questions were relevant because of what the
    appellant believed the complainants motivation may have been. This is both
    wrong and misleading. What the appellant believed to be the complainants
    motivation was not relevant. The questioning was misleading because the jury
    could have been left with the impression that he should have had a credible
    explanation for the allegations.

[30]

The
    Crown compounded this impression in closing submissions, which referred to the
    appellants cross-examination as not making sense.

[31]

The
    trial judge should have instructed the jury to ignore the portion of the
    cross-examination requiring the appellant to explain the reasons for the
    allegations. In connection with this corrective instruction, the trial judge
    should have reminded the jury of the presumption of innocence and the burden of
    proof. In this case, the standard charge given on the presumption of innocence
    and the burden of proof was not sufficient to explain to the jury why this
    evidence, although referred to by the judge and the Crown, should be ignored.
    The failure to give proper jury instructions was an error.

The prior inconsistent statement of S.C.

[32]

A
    prior inconsistent statement can be used to cross-examine a witness. It can
    only be used on the issue of credibility. However, unless the prior
    inconsistent statement is adopted by the witness, it cannot be used for the
    truth of its contents. Failure to provide a limiting instruction to the jury
    has been held to be a reversible error:
Deacon v. The King
, [1947]
    S.C.R. 531;
McInroy and Rouse v. R.
, [1979] 1 S.C.R. 588;
R. v.
    Mannion
, [1986] 2 S.C.R. 272.

[33]

The
    Crown submits that the appellant is precluded from raising this issue now
    because defence counsel failed to pursue the request at the pre-charge
    conference. At the pre-charge conference, the trial judge appears to have been
    mistaken about the law. When the Crown referred to S.C.s prior inconsistent
    statement, the trial judge said:

These are two different statements
     and its up to [the jury members] to decide as to which of the two versions
    to accept .

[34]

In
    the present appeal, this error of law is not excused by the failure of defence
    counsel to object. As I explain below in connection with the
proviso
,
    the jury could have accepted the prior inconsistent statement for the truth of
    its contents and concluded that the complainant slept in the appellants bed on
    the night of March 2, 2015. It was up to the trial judge to make it clear to
    the jury that the prior inconsistent statement could not be used for the truth
    of its contents whether or not defence counsel raised the issue.  As stated by
    Spence J. in
R. v. Squire
, [1977] 2 S.C.R. 13, at p. 19:

It is  the duty of a trial judge
    to submit to the jury in his charge any defence available to the accused which
    had been revealed by the evidence whether or not counsel for the accused chose
    to advance that defence in his address to the jury. [Citations omitted.]

[35]

Nor
    can it be remedied, as submitted by the Crown, by the standard jury charge
    concerning the assessment of credibility. Those instructions are meant to help
    jurors assess credibility. One of the factors that can be considered is whether
    the witness said something different at another time. This standard charge is
    not a substitute for a specific limiting instruction when, as here, it is
    required. The trial judge should have explained to the jury the permitted use
    of the particular prior inconsistent statement at issue, followed by its
    prohibited use. Instruction on the evidentiary value of prior inconsistent
    statements  is essential to proper juror understanding of the use of this
    evidence: David Watt,
Watts Manual of Criminal Jury Instructions
(Toronto: Thomson Canada, 2005), at p. 77. This instruction is important to
    remind jurors to use their common sense in assessing how much reliance to place
    on the witnesss testimony at trial and that the fact, nature and extent of
    the differences, as well as any explanation  for them are factors to consider
    in assessing the credibility and reliability of a witnesss testimony: Watt, at
    p. 78.

[36]

The
    importance of these jury instructions is exactly what is referred to in
R.
    v. Bevan
, [1993] 2 S.C.R. 599, at p. 618:

The real danger flowing from the failure of the trial judge
    to instruct the jury on the use that may be made of prior inconsistent
    statements is that the jury may not have understood that such statements could
    not be used as evidence to prove the truth of their contents. This danger was
    exacerbated by the trial judge's making a number of comments that may have
    caused the jury to conclude that all prior statements (consistent or
    inconsistent)
could

be used as substantive evidence.

[37]

The
    failure to provide a limiting instruction here was an error of law.

THE
PROVISO

[38]

The
    Crown submits that if this court concludes there were reversible errors, the
    curative provision should be applied. The Crown submits that there has been no
    substantial wrong or a miscarriage of justice as a result of the trial judge's
    errors because "the verdict would necessarily have been the same if such
    error had not occurred": see
Colpitts v. The Queen
, [1965] S.C.R.
    739,
per
Cartwright J. (as he then was), at p. 745;
Wildman v. The
    Queen
, [1984] 2 S.C.R. 311, at pp. 328-29.

[39]

I
    do not agree that the verdict would necessarily have been the same,
    particularly without a limiting instruction on S.C.s prior inconsistent
    statement. Absent that instruction, there was no way for the jury to know that
    S.C.s statement to the police could not be relied on for the truth of its
    contents. Given the significance of the sleeping arrangements on the night of
    March 2, 2015, it is entirely likely that the jury accepted the prior inconsistent
    statement to confirm that the complainant slept in the appellants bed. This
    prospect was all the more possible given the trial judges remarks regarding
    the earlier version of the statement.

[40]

I
    therefore do not accept that  absent the errors  the verdict would have been
    the same.

DISPOSITION

[41]

I
    would allow the appeal and order a new trial.

Released: January 02, 2020

MLB

M.L. Benotto J.A.

I agree. K. van
    Rensburg J.A.

I agree. Harvison
    Young J.A.


