



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: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    that could identify the victim shall not be published in any document or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. J.H., 2020 ONCA 165

DATE: 20200304

DOCKET:
C65145

Watt, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H.

Appellant

Ian B. Kasper, for the appellant

Megan Petrie, for the respondent

Heard: August 20, 2019

On appeal from the conviction entered on
    December 7, 2017 by Justice Graeme Mew of the Superior Court of Justice, sitting
    with a jury.

Watt J.A.:

[1]

In June, 2014 C.H. told J.H. (the appellant), her
    husband of 15 years: Our marriage is over. The appellant left the house. C.H.
    and the couples three children remained there.

[2]

After a few hours of drinking, the appellant
    returned to the house. He got into bed with C.H. Despite her protests  You cant
    do this anymore  and resistance, the appellant allegedly ripped C.H.s
    underwear off and forcibly had sexual intercourse with her. He said: Youre my
    wife, I can do whatever the hell I want with you.

[3]

About six months later, after the appellant had
    moved out of the house, a second incident of alleged sexual assault occurred.
    The appellant told C.H.: Im gonna make you pay for what you have done.

[4]

A jury found the appellant guilty of two counts
    of sexual assault.

[5]

The appellant appeals his conviction. He
    advances several grounds of appeal. These reasons explain why I have concluded
    that his appeal should be dismissed.

The Background Facts

[6]

The grounds of appeal advanced do not require a
    detailed recounting of the troubled relationship between the appellant and C.H.
    which preceded its demise. A brief reference will suffice. To the extent
    greater detail is required to understand a ground of appeal, it will be added
    there.

The Early Years

[7]

C.H. and the appellant met when both were
    students at a community college. They married in 1999 and, over the next
    several years, had three children.

[8]

It was apparent to C.H. early in the
    relationship that the appellants consumption of alcohol was problematic. She
    testified that
[t]
here were multiple occasions that he got
    into trouble, some

bars, some pubs.

The Military Postings

[9]

In 2000, the appellant joined the Canadian Armed
    Forces. The family moved frequently due to his military postings. On occasion,
    the appellant was aggressive towards one of the children.

[10]

The appellants military postings included two
    tours of duty in Afghanistan. During these tours, C.H. remained in Canada with
    the couples children. During one tour of duty in Afghanistan, the appellant
    was injured. Later, he was diagnosed with Post-Traumatic Stress Disorder (PTSD).

Deterioration of The Marital Relationship

[11]

Over the years, the marriage deteriorated. The
    appellants abuse of alcohol continued. He was absent from the marriage and the
    home for several periods because of foreign military postings. When he
    returned, he abused alcohol, C.H., and their children, two of whom had serious
    health issues. He also engaged in extra-marital affairs.

[12]

The appellant was critical of C.H. He faulted
    her for anything that went wrong in the household or with the children. As a
    result, she sought counselling and assistance from various individuals and
    agencies.

The Marriage Breakdown

[13]

The family moved to Kingston, where the
    appellant was posted in 2012. The appellant promised C.H. that they would make
    a fresh start and that he would stop drinking.

[14]

The appellants promises did not come to
    fruition. His drinking continued. He became more aggressive towards C.H. and
    their children. He admitted an extra-marital affair. He became more distant in
    his relationship with C.H.

[15]

In December, 2013 C.H. told the appellant to
    leave the house. He declined to do so.

The First Sexual Assault

[16]

One day in June, 2014 C.H. told the appellant
    that the marriage was over. The appellant left the house. He went out drinking.
    He returned several hours later, after midnight.

[17]

On his return, the appellant got into bed with C.H.
    He began touching her intimately. She told him that she could not do that
    anymore and to leave her alone. The appellant ripped C.H.s underwear. He
    ignored her resistance. He said, Youre my wife, I can do whatever the hell I
    want with you and forced sexual intercourse upon her.

[18]

C.H. did not report this incident because of
    concerns she had about her children. The couple remained together with the
    children in the same house.

The End of The Marriage

[19]

A couple of months later, C.H. again asked the
    appellant to leave the house. Once again, he refused. The appellant ultimately
    agreed to attend an out-of-province in-patient facility to be treated for his
    alcohol addiction.

[20]

When the appellant returned home, C.H. told him
    that their relationship was over. Some further problems with one of the
    children had resulted in the Childrens Aid Society (CAS) getting involved. C.H.
    continued to seek assistance from various agencies.

[21]

The appellant and C.H. finally separated in
    mid-November, 2014.

The Second Sexual Assault

[22]

One evening a few weeks after they had
    separated, the appellant called C.H. who was at home with their children. He
    asked C.H. for a ride to the place where he was living. C.H. agreed. En route,
    the appellant persuaded C.H. to let him stay with her and the children. She
    agreed.

[23]

The appellant entered the bedroom where C.H. was
    in bed with all three children. She was fully clothed. The appellant picked C.H.
    up, carried her to another bedroom and threw her down on the bed. He tried to
    undress C.H. He touched her all over her body, including her private areas,
    despite her physical resistance and screams to stop. The appellant told C.H.: Im
    gonna make you pay for what you have done. Shortly thereafter, the appellant
    fell asleep on top of C.H. She slipped out from under him and returned to bed
    with her children. The appellant left the next morning.

The Grounds of Appeal

[24]

The appellant advances five grounds of appeal. He
    contends that the trial judge erred:

i.

in failing to declare a mistrial because of the
    erroneous reception of evidence of the appellants uncharged disreputable
    conduct;

ii.

in failing to restrict the trial Crowns
    improper questioning of C.H. about her experience disclosing and testifying
    about the appellants conduct;

iii.

in failing to instruct the jury on the
    permissible and impermissible uses of evidence of prior consistent statements
    and hearsay;

iv.

in failing to instruct the jury on the
    differences between lack of evidence of a motive to fabricate and the absence
    of a motive to fabricate; and

v.

in failing to provide corrective instructions
    about improprieties in the trial Crowns closing address to the jury.

Ground #1: The Failure to Declare A Mistrial

[25]

This ground of appeal challenges the trial judges
    failure to take remedial steps, in particular to declare a mistrial, because of
    the nature and extent of evidence of the appellants extrinsic disreputable
    conduct introduced at trial in C.H.s testimony. An essential part of the
    complaint is that the evidence was received without a proper admissibility
    inquiry prior to its introduction.

The Additional Background

[26]

To better understand the nature of the appellants
    complaint, some further background is helpful.

The Pre-Trial Proceedings

[27]

Prior to jury selection, no pre-trial
    application was brought to determine the admissibility of any evidence of uncharged
    disreputable conduct on the part of the appellant. Put differently, neither
    party asked the trial judge to rule on the admissibility of this evidence
    before it was introduced during C.H.s testimony.

The Discussion Prior to Jury Openings

[28]

After the jury had been selected, but before
    either the trial judge or the Crown gave their opening remarks, the Crown (not counsel
    on appeal) alerted the trial judge to two evidentiary issues that would arise
    in the course of the trial.

[29]

The Crown explained that the complainant would
    be testifying about the appellants disreputable conduct towards her prior to
    the commission of the offences charged. The Crown argued this evidence should
    be received on the basis that it tended to show the history of the couples
    relationship and the appellants
animus
towards her, and explained her
    delay in reporting the sexual assaults. No details of the proposed evidence were
    provided. However, the Crown did say that the conduct involved was not of the
    same magnitude as the offences charged.

[30]

Defence counsel (not counsel on appeal)
    described the proposed evidence, the full extent of which he claimed not to
    know, as a double-edged sword. He had no objection to the evidence about
    excessive alcohol consumption and marital infidelity which preceded the first
    alleged sexual assault. However, he expressed concern about the extent of the
    evidence to be tendered and its use to explain the delay in reporting and in
    the complainant leaving the relationship. Counsel also requested the trial
    judge to instruct the jury on the use of this evidence.

[31]

The trial judge was not asked to make and did
    not make any ruling on admissibility. He cautioned the Crown to be disciplined
    in his introduction of the evidence and told defence counsel to object if he
    saw things heading in a direction with which he was not comfortable.

The Admissibility Inquiry

[32]

Neither counsel sought, nor did the trial judge
    direct, an inquiry into the admissibility of the evidence of the appellants prior
    disreputable conduct.

The Opening Addresses

[33]

In his opening address, the Crown made some
    references to the appellants disreputable conduct, but provided little detail.
    Defence counsel did not object to the opening or suggest to the trial judge
    that an admissibility inquiry should be held to determine the extent of this
    evidence that the jury could hear.

The Evidence of Disreputable Conduct

[34]

The evidence about which the appellant complains
    involves four types of conduct:

i.

the rifle on the freezer;

ii.

running from the police;

iii.

absentee parenting; and

iv.

aggression towards one of the children.

A brief description of each will
    suffice.

[35]

C.H. testified that among several factors that caused
    her to take a leave of absence from work and led to the deterioration of the
    marital relationship, was her discovery of a rifle at the family home. Crown
    counsel elicited no further details. In cross-examination, C.H. agreed that she
    had no idea whether the rifle was operable. Shortly after the rifle was
    discovered, the appellant arranged for its disposal.

[36]

C.H. gave evidence about how the appellants
    behaviour changed when he had been drinking. She illustrated what she meant by
    referring to a time when the appellant and a friend were in England on a
    military assignment. Both men were chased by the police. The Crown did not
    elicit any further details.

[37]

In cross-examination, defence counsel suggested
    that the appellant's pursuer was a London pimp, not the London police. The
    complainant disagreed. She added that the appellant was also involved with the
    police in Halifax although he had not been charged with any offence. The trial judge
    intervened and instructed the complainant to confine her responses to the
    questions asked. Defence counsel used the latter exchange in his closing to the
    jury to illustrate C.H.s telling of a story to discredit the appellant.

[38]

The complainant also testified that, at various
    times during their relationship, the appellant had been absent from the family
    home, leaving her to parent their children. However, other evidence revealed
    that the appellant had been deployed twice to Afghanistan and that, even after
    separation, he had returned to assist in getting their older son to school.

[39]

C.H. gave evidence that the appellant pushed or
    shoved their older son. The Crown did not expressly elicit this testimony;
    rather the complainant mentioned it as part of a more expansive answer about
    the appellants conduct prior to the assaults. Defence counsel suggested to C.H.
    that she had also been aggressive with their son.

The Motion for A Mistrial

[40]

On the first day of trial, the complainant
    testified in-chief. Her testimony attracted no objection from defence counsel
    while the jury was present. However, at the end of the day, after the jury had
    been excused, defence counsel alerted the trial judge to several aspects of the
    complainants evidence that were of concern to him. The extensive evidence of
    narrative and context. Some hearsay. Leading questions by the Crown. And
    evidence of discussions the complainant recounted with a doctor, CAS staff, and
    a social worker. Counsel did not bring a mistrial application at that time, but
    foreshadowed one because, in his submission, the harm caused by the evidence
    could not be undone by the simple expedient of a limiting instruction.

[41]

The following day, in the absence of the jury,
    defence counsel applied for a mistrial. He pointed out that evidence of
    extrinsic disreputable conduct was presumptively inadmissible. It was incumbent
    on the Crown to satisfy the judge, on a pre-trial application, that the
    probative value of this evidence outweighed its prejudicial effect. The Crown
    had failed to do so. Although counsel had discussed the admissibility issue at
    the pre-hearing conference, and had agreed on a course to circumnavigate the
    conduct underlying the appellants prior convictions, the volume of evidence of
    disreputable conduct adduced at trial far exceeded what counsel anticipated and
    caused prejudice which a limiting instruction could not cure.

[42]

The trial Crown acknowledged that it would have
    been preferable to have had the admissibility issue litigated and decided by
    pre-trial application. On the other hand, the evidence was plainly admissible
    on several grounds and any moral or reasoning prejudice occasioned by it could
    be cured by limiting instructions.

The Ruling of The Trial Judge

[43]

The trial judge dismissed the mistrial
    application. He acknowledged that the admissibility of the evidence should have
    been determined on a pre-trial application by the Crown. But, he was pretty
    confident that, had such an application been made, it would have been granted.

[44]

Before the complainant was recalled to complete
    her examination in-chief and cross-examination, the trial judge instructed the
    jury how they must
not
use the evidence of extrinsic disreputable conduct. Neither counsel took issue
    with the content of this instruction.

The Arguments on Appeal

[45]

The appellant says that the trial judge erred in
    dismissing the mistrial application. This error occurred because the trial judge
    reached the wrong conclusion about the admissibility of this evidence.

[46]

The appellant contends that the disputed
    evidence was presumptively inadmissible. It was incumbent on the Crown to
    establish a case for admissibility on a pre-trial application by establishing,
    on a balance of probabilities, that the probative value of this evidence
    exceeded its prejudicial effect. The trial judges dismissal of the mistrial
    motion resulted from three errors related to the admissibility of the uncharged
    disreputable conduct evidence:

i.

the failure to conduct a
voir dire
to
    determine admissibility;

ii.

the failure to conduct a proper balancing of
    probative value and prejudicial effect; and

iii.

the reception of evidence to establish
animus
and motive that lacked probative value on those issues.

[47]

The respondent rejects any suggestion of error
    in dismissal of the mistrial motion. The evidence of disreputable conduct was
    relevant and admissible as narrative; to establish
animus
and motive;
    and to provide context for evidence about the offences charged.

[48]

In prosecutions involving allegations of
    domestic abuse, the respondent says, evidence of uncharged disreputable conduct
    may be relevant to show the nature and dynamics of the relationship; to prove
animus
or motive; to explain the delay in reporting; and to rebut a claim that the
    allegations have been fabricated. In this case, the respondent continues, the
    evidence adduced was relevant to and properly admissible on each of these
    issues.

[49]

The respondent takes issue with the appellant's
    claim of prejudicial error in the failure of the Crown to request, or the trial
    judge to conduct, an inquiry into the admissibility of this evidence prior to
    its introduction before the jury. Before trial, the parties discussed and
    reached a give and take agreement about the admissibility of this evidence.
    Each wanted to avoid disclosure of any conduct which had resulted in the
    appellants prior convictions. This was done. And the evidence of uncharged
    disreputable conduct adduced at trial did not exceed the expectations of either
    party.

[50]

It is well established, the respondent
    continues, that decisions on whether to declare a mistrial involve the exercise
    of judicial discretion. It follows that decisions on this issue are subject to
    substantial deference when challenged on appeal. In this case, the trial judge
    applied the proper principles and concluded that a less drastic remedy  a
    limiting instruction  was sufficient to contain any prejudice which might
    arise from the introduction of the evidence. Decisions about the adequacy of
    alternative remedies are also discretionary, thus are equally entitled to
    deference on appeal. In neither case should we interfere.

The Governing Principles

[51]

To evaluate this ground of appeal requires
    consideration and application of principles governing evidence of uncharged
    disreputable conduct and the procedure to determine its receivability. And we
    must take into account not only the test to be applied on a motion for a
    mistrial, but also the standard we are to apply on reviewing decisions rendered
    on those motions.

The Receivability of Evidence of Uncharged Disreputable
    Conduct

[52]

To be receivable in a criminal trial, evidence
    must be relevant, material and admissible. Evidence is
relevant
if it tends to prove what it
    is offered to prove. Evidence is
material

if what it is offered and tends to prove is something with which the law is
    concerned. And evidence is
admissible
if its reception does not offend any exclusionary rule of evidence and its
    probative value exceeds its prejudicial effect:
R. v. Calnen
,
2019 SCC 6,
374
    C.C.C. (3d) 259,
at
paras. 107-9;
R. v. J.A.T.
,
    2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 49.

[53]

When evidence of uncharged disreputable conduct is
    tendered by the Crown, the evidence is generally, but not always, inadmissible:
R. v. Robertson
, [1987] 1 S.C.R. 918, at p. 941;
R. v. Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 36; and
R. v. Luciano
,
    2011 ONCA 89
,
267 C.C.C. (3d) 16,
at para
. 221. The general prohibition arises because of the baggage  moral
    and reasoning prejudice  this evidence brings with it. We prohibit
    prosecutorial use of character evidence, and thus evidence of uncharged
    disreputable conduct to establish character, as circumstantial proof of
    conduct:
Luciano
, at paras. 116, 221;
Handy
, at para. 31.

[54]

Like other admissibility rules, this general
    rule of exclusion capitulates on occasion. It yields where the probative value
    of the proposed evidence exceeds its prejudicial effect:
Handy
, at
    para. 55;
Luciano
, at para. 222; and
J.A.
T.
, at paras.
    51, 54. Whether the evidence will be admitted by exception or excluded under
    the general rule is a function of the circumstances of each case. These
    circumstances determine where the balance as between probative value and
    prejudicial effect will settle, not some prefabricated rule or exclusive list
    of exceptions:
J.A.T.
, at para. 54.

[55]

Despite the absence of any such rule or list of
    exceptions, evidence of uncharged disreputable conduct has often been received
    in prosecutions alleging assaultive behaviour in a domestic relationship,
    including charges of sexual assault. Among the issues upon which this evidence
    has been admitted are these:

i.

as part of the narrative of relevant events;

ii.

to provide context for other evidence;

iii.

to facilitate understanding of the nature of the
    relationship between the principals;

iv.

to demonstrate motive or
animus
on the
    part of the accused for committing the offences;

v.

to explain the failure of the complainant to
    leave the relationship or to report the abuse earlier; and

vi.

to rebut a claim of fabrication.

See
R. v. F., D.S.
(1999), 43
    O.R. (3d) 609 (C.A.), at pp. 616-17;
R. v. R., B.S.
(2006), 81 O.R.
    (3d) 641 (C.A.), at para. 38.

The Procedure to Determine Admissibility

[56]

The admissibility of evidence tendered for
    reception in a criminal trial is for the trial judge to determine:
R. v. B.
    (G.)
, [1990] 2 S.C.R. 57, at p. 71;
R. v. Spackman
, 2012 ONCA 905,
    295 C.C.C. (3d) 177, at para. 115. After all, admissibility is a legal concept
    governed by rules that are primarily exclusionary, but subject to inclusionary
    exceptions. In a jury trial, the presiding judge has the duty to ensure that
    only relevant, material and admissible evidence gets before the jury:
J.A.
T.
,
    at para. 50;
R. v. B. (F.F.)
, [1993] 1 S.C.R. 697, at pp. 735-36.

[57]

In trials in the Superior Court of Justice, any
    party who seeks admission of evidence that a common law or other rule renders
    presumptively inadmissible must apply to the trial judge for an order
    permitting its reception. This is the effect of rr. 30.01 and 30.02(1) of the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
, SI/2012-7,
    as amended
by
SI/2014-5, s. 17
.
Rule 30.01(a) applies
    specifically to evidence of disreputable conduct by an accused, other than the
    conduct charged in the indictment.

[58]

The prevailing practice in this province is to
    invoke s. 645(5) of the
Criminal Code
of Canada
, R.S.C. 1985,
    c. C-46, together with rr. 30.03-30.05, to have the application heard and
    determined in advance of jury selection. Scheduling is done at or after the
    mandatory pre-hearing conference under s. 625.1(2) of the
Criminal Code
.
    The form the admissibility inquiry will take is for the judge to decide:
R.
    v. Evans
, 2019 ONCA 715
,
147 O.R. (3d) 577
, at
para.
    148.

[59]

It may not be necessary in all cases to conduct
    an admissibility inquiry in accordance with the procedure prescribed by the
Criminal
    Proceedings Rules
. An express waiver by counsel of the necessity for an
    inquiry, and an admission that the proposed evidence is admissible, may obviate
    the necessity for an inquiry:
R. v. Park
, [1981] 2 S.C.R. 64, at pp.
    73-74.

[60]

The failure to conduct an admissibility inquiry
    may amount to procedural error capable of vitiating a conviction:
Park
,
    at pp. 69-70. But whether such a consequence will ensue from the failure will
    depend on the circumstances of each case. In some instances, the failure may be
    rendered harmless by the application of a curative proviso:
R. v. D.A.R.
,
    2012 NSCA
31,
314 N.S.R. (2d) 331,
at para
. 19.

Mistrial Applications

[61]

A mistrial is a remedy of last resort, ordered
    only where it is necessary to prevent a miscarriage of justice. A mistrial
    should be declared only after a trial judge has considered and rejected as
    inadequate other less extreme remedies, such as mid-trial limiting or curative
    instructions:
R. v. A.G.
, 2015 ONCA
159,
124 O.R. (3d) 758,
at
    para. 50;
R. v. Chiasson
, 2009 ON
CA
789,
258 O.A.C.
    50,

at para.
    14; and
R. v. Burke
, 2002 SCC 55, [2002] 2 S.C.R. 857, at paras. 75, 77.

[62]

The trial judge is best positioned to determine
    whether a mistrial should be granted or whether some lesser remedy, such as a mid-trial
    instruction, is an adequate antidote to the prejudice that has seeped into the
    trial. On this issue of choice of remedy, appellate courts owe substantial
    deference to the trial court and should intervene only in cases where the
    conclusion is clearly wrong or is grounded on an erroneous principle:
A.G.
,
    at paras. 51-52;
Chiasson
, at para. 14.

The Principles Applied

[63]

I would not give effect to this ground of
    appeal. My assessment of it proceeds through a series of steps.

[64]

At the outset, recall that it was
    uncontroversial at trial that throughout the marriage, especially in its waning
    stages, the appellant abused alcohol, C.H., and  at times  his children. He
    had extra-marital affairs. The relationship had become toxic. Both parties, as
    individuals and together, had attended or sought the assistance of individuals
    or organizations for counselling. Evidence of these efforts and the reasons
    underlying them was before the jury.

[65]

The appellants principal arguments in support
    of this ground of appeal relate to four items of evidence:

i.

the rifle on the freezer;

ii.

running from the police;

iii.

absentee parenting; and

iv.

pushing or shoving one of the children.

At least three of these incidents were
    uncontroversial. There was no doubt that each had occurred. The fourth 
    running from the police  appears to be hearsay since it is unclear that C.H.
    was present to witness these events.

[66]

First, admissibility.

[67]

Leaving to one side the incidents involving the
    rifle on the freezer and running from the police, the other incidents tend to
    show the nature of the marital relationship of C.H. and the appellant; thus
    they provide context for the other evidence and assist in unfolding the
    narrative.

[68]

Evidence about possession of a rifle and running
    from the police in Halifax and in London, England lacked relevance on any
    material issue. On the other hand, neither of these items of evidence were likely
    to engender any moral or reasoning prejudice. There was no evidence that the
    rifle was operable, much less used as an instrument of intimidation. The
    appellant arranged for its disposal. And it was made clear that the London
    incident did not involve any allegations of criminal conduct. The incidents
    were markedly less serious than the offences charged. The details revealed to
    the jury about each were sparse, briefly recounted, and not the subject of
    protracted questioning.

[69]

In the result, I am not satisfied that
    introduction of the evidence about the four incidents which form the core of
    this complaint compromised the validity of the verdict or the fairness of the
    appellants trial.

[70]

Second, the failure to hold an admissibility
    inquiry.

[71]

The record on appeal does not disclose any
    discussions about the admissibility of evidence of uncharged disreputable
    conduct that may have occurred at the pre-hearing conference required under s.
    625.1(2) of the
Criminal Code
. This deficiency underscores the
    importance of pre-hearing conferences and, more particularly, delivery of the
    pre-hearing conference report and its review by the trial judge in advance of
    trial. This enables discussion and, where necessary, resolution of evidentiary
    issues in advance of jury selection.

[72]

What does appear from the record is that counsel
    had discussed the evidence of uncharged disreputable conduct in advance of
    trial. They agreed to refrain from introducing evidence of the conduct upon
    which the appellants prior convictions had been based. The extent of the
    agreement beyond that is unclear.

[73]

What occurred in this case  an after-the-fact
    complaint about evidence of uncharged disreputable conduct and a motion for a
    mistrial  was avoidable. The uncertainty could and should have been resolved
    in advance of jury selection. A simple statement of the nature of the
    agreement. A discussion clarifying any areas of uncertainty. At bottom, it was
    for the Crown to establish a case for admissibility and for the trial judge to
    settle the issue after inquiry. Neither occurred.

[74]

Despite these omissions, I am not persuaded that
    the failure to conduct an admissibility inquiry resulted in the introduction of
    inadmissible evidence that tainted the validity of the jurys verdict or
    otherwise compromised the fairness of the trial.

[75]

It is well-settled that the failure to conduct
    an admissibility inquiry does not, without more, preclude upholding on appeal
    the verdict rendered at trial. Such a failure is a procedural irregularity, and
    thus within the potential reach of the proviso in s. 686(1)(b)(iv) of the
Criminal
    Code
.

[76]

In this case, no miscarriage of justice occurred
    as a result of this procedural omission. The only aspects of the evidence of
    uncharged disreputable conduct that was inadmissible  the rifle and the
    encounters with police  were unlikely to engender propensity reasoning. The
    entire package of evidence of uncharged disreputable conduct was the subject of
    a mid-trial instruction enjoining impermissible use. The instruction was
    repeated in the charge. And this was evidence well-known to defence counsel.

[77]

Finally, the failure to declare a mistrial.

[78]

Decisions on motions for mistrials involve the
    exercise of judicial discretion. A mistrial is a remedy of last resort. It is
    appropriate only in cases in which it is necessary to prevent a miscarriage of
    justice when all other less extreme remedies have been rejected as inadequate.
    The trial judge was there. We were not. His decision to decline to order a
    mistrial, and to instead provide and later repeat a specific instruction
    enjoining prohibited reasoning, is entitled to deference. That decision was not
    unreasonable. Nor was it compromised by consideration of any erroneous factor,
    or a failure to consider any relevant factor. In the absence of error, this
    ground of appeal fails.

Ground #2: Improper Questioning of the Complainant

[79]

This ground of appeal challenges the propriety
    of several questions the Crown asked the complainant in concluding her
    examination-in-chief. The questions, unchallenged at trial, are now said to
    have been improper, the answers they elicited from C.H., inadmissible, and the
    result, a fatal blow to the appellants entitlement to a fair trial.

The Essential Background: The Impugned Questioning

[80]

On the second day of trial, immediately after
    the trial judge had instructed the jury about the permitted and prohibited use
    of evidence of uncharged disreputable conduct, the Crown continued his
    examination-in-chief of the complainant for a further 20 minutes.

[81]

During this time, the Crown asked three
    questions to which objection is now taken:

Q.      [C.H.], can you tell us how you feel
    about testifying today?



Q.      Okay. Looking back on it now, can you
    think of anything good that has coming out of  come out of telling police
    about what happened?



Q.      Okay. And if you had it  looking back
    on all of this right up to today, if you had [to do it] over again, would you
    have told police?

[82]

After a brief adjournment, defence counsel
    cross-examined C.H. At no point in the trial did defence counsel complain about
    this aspect of the examination-in-chief or seek any remedial instruction about
    it.

The Arguments on Appeal

[83]

The appellant says that the excerpted questions
    were improper. The evidence the examiner sought to elicit was irrelevant and
    therefore inadmissible. C.H.s general experience testifying at trial was of
    no assistance in assessing her credibility as a witness or the reliability of
    her testimony. Equally so her experience with the criminal justice system, and
    the reaction of her children to her disclosure and testimony. And her
    statement, The truth is the truth, amounted to nothing more than oath-helping
    and should not have been permitted.

[84]

The examiners questions represented a
    not-so-subtle attempt to inflame the jurys emotions, to invite the jurors to
    decide the case based on their sympathy for the complainant, rather than by an
    objective assessment of the evidence. The trial judge should have intervened.
    His failure to do so caused a miscarriage of justice.

[85]

The appellant adds that the impropriety of this
    questioning was exacerbated by the Crowns closing address, which emphasized
    that by reporting her allegations and testifying the complainant had done a hard
    thing for which she had paid a huge price. These submissions also warranted
    judicial intervention and remedial instructions. But, once again, the trial
    judge did nothing. This failure, coupled with the Crowns questioning and jury
    address, compromised the fairness of the trial and caused a miscarriage of
    justice. A new trial is necessary.

[86]

The respondent submits that the relevant inquiry
    on appeal is whether what occurred caused a miscarriage of justice. Whether
    considered alone or together, the questioning and closing address fall well
    short of this standard.

[87]

The respondent says there is a distinction
    between Crown conduct that is improper and conduct that compromises trial
    fairness. This is a case of impropriety, at worst.

[88]

Several factors suggest that trial fairness was
    not compromised. Experienced defence counsel did not object to the questioning
    or the jury address. He did not move for a mistrial. He did not seek a curative
    instruction. The questions and answers were but a small part of the complainants
    evidence. They were followed by a comprehensive cross-examination. Finally, the
    charge to the jury emphasized the irrelevance of sympathy and prejudice to the
    jurys evaluation of the evidence and their process of reaching a verdict.

The Governing Principles

[89]

Several principles are of service in resolving
    this ground of appeal.

[90]

First, the role or duty of Crown counsel in
    criminal prosecutions.

[91]

Counsel for the Crown occupies a special
    position in the prosecution of criminal offences, a position which excludes any
    notion of winning or losing:
Boucher v. The Queen
, [1955] S.C.R. 16,
    at pp. 21, 24;
R. v. A.T.
,
2015 ONCA 65, 124 O.R. (3d) 161, at para. 26;
R. v. Brown,
2001 BCCA
    14, 152 C.C.C. (3d) 437 (
Brown (BCCA)
), at para. 15; and
Pisani v.
    The Queen
,
[1971] S.C.R. 738, at p. 740. Although most often
    associated with other aspects of the trial process, such as cross-examination
    of an accused witness or the closing address to the jury, the authorities
    direct Crown counsel to eschew appeals to emotion:
Brown (BCCA)
, at
    para. 15.

[92]

Nor is counsel for the Crown entitled to advance
    legally impermissible submissions that invite legally prohibited reasoning or
    effectively undermine trial fairness:
R. v. Mallory
, 2007 ONCA 46, 217
    C.C.C. (3d) 266, at para. 340;
A.
T.
, at para. 27; see also
R.
    v. Ahmed
, 2015 ONCA 751, 330 C.C.C. (3d) 60, at para. 43.

[93]

Second, bolstering credibility.

[94]

The rule against oath-helping prohibits the
    reception of evidence solely for the purpose of establishing the truthfulness
    of a witness:
R. v. Llorenz
(2000), 145 C.C.C. (3d) 535 (Ont. C.A.),
    at para. 27. This rule applies to evidence that tends to prove the truthfulness
    of the witness rather than the truthfulness of the witness evidence:
Llorenz
,
    at para. 27; see also
B. (F.F.)
, at p. 729.

[95]

It is not always easy to determine when evidence
    crosses the line into impermissible oath-helping. The authorities distinguish
    between evidence about credibility  e.g., a witness opinion that another
    witness is telling the truth  and evidence about a witness behaviour or
    testimony, which may be admissible despite the likelihood that it will affect
    the trier of facts ultimate determination of the issue of credibility:
Llorenz
,
    at para. 28.

[96]

Third, evidence of victims character.

[97]

In criminal trials the victims character is not
    generally relevant. Thus evidence on this issue is not admissible  although it
may be in some cases:
R.
    v. Jack
(1992), 70 C.C.C. (3d) 67 (Man. C.A.), at p. 86;
R. v. White
, 2014 ONCA
    64, 305 C.C.C. (3d) 449, at para. 171, leave to appeal refused,
[2014] S.C.C.A. No. 500
.

[98]

Fourth, the obligation
    of the trial judge with respect to the introduction of evidence.

[99]

As explained above, that obligation is to ensure
    that only relevant, material, and admissible evidence is received:
J.A.
T.
,
    at para. 50;
B. (F.F.)
,
at pp. 735-36. It is also incumbent upon counsel conducting a case, whether
    prosecuting or defending, examining in-chief, cross-examining or re-examining,
    to adduce evidence that is relevant, material and admissible:
Evans
,
    at para. 100.

[100]

Finally, the effect of a failure by counsel to adhere to the rules
    respecting the introduction of evidence.

[101]

At trial, the presiding judge has a duty to intervene to ensure
    compliance, at least in cases in which the contravention may result in the
    introduction of evidence prejudicial to the accused:
A.
T.
, at
    para. 29. Failure of defence counsel to object does not bar a successful appeal
    on this ground. Nor does appellate success inevitably follow. On appellate
    review, the question is whether, in the context of the entire trial, the
    evidence or other conduct (including any response or lack of response by the
    trial judge) caused a substantial wrong or miscarriage of justice:
A.
T.
,
    at paras. 30-31;
R. v. Romeo
, [1991] 1 S.C.R. 86, at p. 95.

The Principles Applied

[102]

I would not accede to this ground of appeal.

[103]

It is difficult to determine on what basis the trial Crown
    considered these questions were proper. The evidence they elicited was not
    relevant. Or material. Or admissible. The questions should not have been asked.
    Their answers should not have been reviewed in the Crowns closing address to
    the jury. The questions and their predictable responses invited jurors
    emotional reaction to the evidence, not their objective assessment of it.

[104]

On the other hand, in this court the question is not about
    performance, but effect  about whether what occurred resulted in the
    introduction of evidence which compromised the fact-finding process or rendered
    the trial unfair. I am not satisfied that it did.

[105]

The evidence in issue is brief. It was adduced at the outset of the
    complainants testimony on the second day of trial. It was preceded by a clear,
    focused instruction about the permitted and prohibited use of evidence of
    uncharged disreputable conduct. It was followed by a lengthy cross-examination.
    It attracted no objection from defence counsel and no request for a remedial
    instruction.

[106]

In these circumstances, I would not give effect to this ground of
    appeal.

Ground #3: Limiting Instructions on Prior Consistent Statements and Hearsay

[107]

This ground of appeal relates to evidence of C.H.s disclosure to
    various individuals or agencies of her allegations of sexual assault. C.H. was
    the only witness at trial. None of the recipients of her disclosures testified.

The Essential Background

[108]

At trial, C.H. testified about her contact and discussions with
    persons at various agencies. A social worker. Medical staff. Employees of CAS
    and a womens shelter. A lawyer. And ultimately, the police. Few details of the
    substance of the allegations of sexual assault emerged from her descriptions.
    To the extent that details did emerge, they were elicited in cross-examination.

[109]

No objection was taken to the admissibility of the complainants
    testimony about her disclosure of her allegations of sexual assault. Nor was
    the trial judge asked, during the pre-charge conference or by objection after
    the charge was delivered, to instruct the jury in the manner now said to have
    been essential. In the result, no instruction was provided to the jury about
    how they were or were not entitled to use this evidence in reaching their
    decision.

[110]

In his charge to the jury, the trial judge repeated his mid-trial
    instruction about evidence of uncharged disreputable conduct. He also included
    typical instructions about the prior
inconsistent
statements of the complainant and explained to the jury how they were to assess
    the complainants evidence.

The Arguments on Appeal

[111]

The appellant argues that evidence of the complainants disclosures
    was admitted ostensibly to explain her delay in reporting and in leaving the
    relationship. But neither was in issue at trial. These disclosures included
    prior consistent statements and hearsay. Each required limiting instructions.
    But none were provided. This left the jurors untutored about the permissible
    use of this evidence, free to use it as they saw fit  including, for example,
    as confirmation of C.H.s testimony. The result was an unfair trial and a
    miscarriage of justice.

[112]

The respondent submits that the complainants prior disclosures were
    admissible under the narrative exception to the general rule prohibiting
    admission of the prior consistent statements of a witness. The evidence
    assisted the jury in understanding how the complainants allegations were
    disclosed and came to be before the court for the trial of their truth.

[113]

The respondent accepts that, as a general rule, this evidence
    requires a limiting instruction to ensure the jury uses it in a permissible
    way. But, in some cases,
no
limiting instruction is required.

[114]

This is one such case. No limiting instruction was required, the
    respondent submits, for several reasons. Few details of the content of the
    statements were disclosed. To the extent any details of the disclosure were
    admitted in evidence, that testimony was adduced by defence counsel, a fact
    about which he can hardly now complain. In fact, the appellant relied on these
    statements as part of his defence that the complainant was an incredible
    witness. Further, no concern about self-corroboration arose. The statements
    were tendered as part of the narrative; no one suggested they could be used as
    proof the offences were committed.

The Governing Principles

[115]

The governing principles are uncontroversial, though the parties
    differ on the consequences of their application in this case.

[116]

First, admissibility.

[117]

As a general rule, prior consistent statements
    of a witness are not admissible in criminal proceedings. This is because they
    are considered to be at once self-serving and devoid of probative value:
R.
    v.

Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5;
R.
    v. M.A.J.
, 2015 ONCA 725,
329 C.C.C. (3d) 149
,
at para. 45. The statements are considered
    unhelpful because they add nothing new to the evidence. And they are potentially
    dangerous because they may mislead the trier of fact into thinking that
    repetition bespeaks truth:
R. v. Divitaris
(2004), 188 C.C.C. (3d) 390
    (Ont. C.A.), at para
. 28;
R. v. D.K.
, 2020 ONCA 79, at paras.
    34-35.

[118]

Like most admissibility rules, exceptions exist. Prior consistent
    statements may be admitted:

i.

to rebut an allegation of recent fabrication;

ii.

to rebut impeachment of the witness by prior
    inconsistent statements;

iii.

to provide context for other evidence; or

iv.

as evidence of narrative.

The list is illustrative, not
    exhaustive: see
M.A.J.
, at para. 46.

[119]

Second, jury instructions.

[120]

As with other evidence of limited admissibility, when evidence of
    prior consistent statements is received in a jury trial, as a general rule, the
    trial judge must instruct the jury about the permitted and prohibited use of
    this
evidence:
Divitaris
,
    at
para. 31;
J.A.
T.
, at paras. 50, 53.


[121]

But once again, an exception. Limiting instructions are not always
    required. As, for example, where the accused relies on the prior statement. Or
    it is clear at trial that neither party is relying on the prior statement as evidence
    of the truth of its contents. Or where no concern about self-corroboration
    arises:
M.A.J.
, at para. 47;
R. v. C.B
.,
    2008 ONCA 486, 237 O.A.C. 387, at paras. 49-51;
R. v. P.S.
(2000),
    144 C.C.C. (3d) 120 (Ont. C.A.), at paras. 24-26
, leave to appeal refused
,
[2000]
    S.C.C.A. No. 486
.
Also within the exception are
    cases in which no detail is given of the statement or where the statement is
    admitted as narrative:
R. v. G.M
., [2000] O.J. No. 5007 (C.A.), at
    para. 2.

[122]

Finally, the impact of any errors.

[123]

A failure to provide a limiting instruction to the jury where one is
    required is an error of law. But legal errors are not always fatal. Where the
    errors do not cause a substantial wrong or result in a miscarriage of justice,
    the verdict rendered at trial may be sustained by the application of the
    proviso in s. 686(1)(b)(iii) of the
Criminal Code
.

The Principles Applied

[124]

A combination of factors persuades me that this ground of appeal
    fails.

[125]

First, as to admissibility. No argument is advanced that this
    evidence was inadmissible. At the very least, it was properly received as part
    of the unfolding of the narrative of relevant events.

[126]

Second, this is not a case in which the jury heard the prior
    statements in rich detail. Quite the contrary. The Crown elicited little more
    than the fact of disclosure from the complainant. To the extent that the
    disclosure was amplified by detail, it tended to emerge in cross-examination.
    It seems reasonable to say that, to the extent a trier of fact may be inclined
    to mistake repetition for truth, this is more likely to occur when the details
    of each prior statement have been repeated before them. But that was not the case
    here.

[127]

Third, defence counsel used this evidence to buttress the defence
    position that the complainant was an incredible witness who gave unreliable
    evidence.

[128]

Fourth, experienced trial counsel neither sought nor complained
    about the absence of the instruction now said to have been critical to a
    reasoned assessment of the complainants testimony and the fairness of the
    trial. The person at trial most attuned to the appellants interests saw it
    otherwise. As do I.

Ground #4: Instructions on Motive to Fabricate

The Essential Background

[129]

This ground of appeal focuses on the closing addresses of trial
    counsel, especially that of the Crown. Some reference to the pre-charge
    conference, the charge itself, and the objections to the charge will provide
    sufficient context.

The Closing Addresses of Counsel

[130]

Since the defence adduced no evidence, the Crown addressed the jury
    first.

[131]

The Crown portrayed the complainant as a person who had made a
    difficult decision to report sexual assaults committed by her husband. She made
    the decision and has lived with it despite it having resulted in the loss of
    her family   in particular, her children. She was not vindictive and did not
    make these events up, but rather accurately and truthfully recounted what had
    happened.

[132]

Two passages in the Crowns closing address illustrate the approach
    he invited the jury to take in assessing the complainants evidence:

It was a horrible truth  in her words, a
    horrible truth that she had to tell. She has no motive to make this up. Theres
    nothing in it for her. This was a woman trying to make a relationship work.
    There was no joy. And you heard her when she turned and talked to you. Who
    wants to tell their most intimate and personal aspects of their life in a
    courtroom to strangers including members of the jury? So  is there any basis
    to question what she was telling you, to have any doubt or to question her
    credibility, her believability, her truthfulness?



There is no reason to doubt that [C.H.] was
    telling you the truth. She found her voice. She told you what happened. She did
    not fabricate. She is not vindictive. She is not nasty. She is not losing her
    children just for the sake of putting forward a false sexual assault
    allegation. She is here. She did a hard thing. She has paid a huge price. Her
    evidence is compelling and convincing. No reason to doubt it. If you believe
    her evidence, you should have no reasonable doubt and you must convict.

[133]

In his closing address, defence counsel vigorously attacked the complainants
    credibility and the reliability of her evidence. He suggested that her
    testimony was fabricated and that she had perjured herself before the jury.

The Pre-Charge Conference

[134]

At the pre-charge conference, the Crown sought an instruction on
    motive as it related to motive on the part of the appellant to sexually assault
    the complainant. Defence counsel resisted an instruction about the appellants
    motive, but acknowledged that the standard instruction on the issue was
    balanced.

[135]

As for the complainants motive to fabricate, defence counsel
    emphasized that he was under no obligation to prove that C.H. had any such
    motive. He did not seek an instruction on this issue. Counsel expressed concern
    that an instruction on motive would deflect the jurys attention from the
    essential issue, which was whether the sexual assaults alleged by the
    complainant had in fact occurred.

The Charge and Objections

[136]

In his charge, the trial judge said nothing about the motive, or
    absence of motive, of the complainant to fabricate her allegations of sexual
    assault.

[137]

Defence counsel did not object to the absence of an instruction on
    motive. The jury did not ask any questions on this issue.

The Arguments on Appeal

[138]

The appellant submits that in his closing address at trial, the
    Crown relied extensively on the complainants lack of a motive to fabricate her
    accounts of sexual assault. But the law distinguishes between a lack of
    evidence of a motive to fabricate and a proven lack of a motive to fabricate. What
    we have here, the appellant says, is the former. And that is not the equivalent
    of evidence that the witness is telling the truth. Nor is it evidence that the
    witness does not have a motive to fabricate.

[139]

In his closing address, the Crown argued that the complainant had no
    motive to fabricate her evidence. He emphasized the negative consequences of
    her reporting the sexual assaults. In these circumstances, the trial judges
    failure to give a corrective instruction warrants a new trial.

[140]

The respondent says that when set in its proper context, the closing
    address of the Crown did not require a corrective instruction to guard against
    improper reasoning or ensure the fairness of the trial.

[141]

The respondent does not gainsay that the presence or absence of a
    motive to fabricate is a relevant factor, among many, for the trier of fact to
    consider in assessing the credibility of a witness and the reliability of their
    evidence. The problem arises when language is used that suggests the accused has
    the onus of proving the witness
had
a motive to fabricate. That did not happen here.

[142]

In this case, the respondent contends, the defence position was that
    the complainant had fabricated her evidence of the sexual assaults and had put
    on a show for the jury. When Crown counsel sought an instruction on motive on
    the part of the appellant to commit sexual assaults, defence counsel resisted
    any instruction on motive. The trial judge did instruct the jury on motive, but
    limited it to the long-standing
animus
of the appellant towards the
    complainant as a motive for the appellant to commit the offence charged. The
    jury was repeatedly instructed on the burden of proof and specifically informed
    that the appellant was not required to present any evidence. Considered as a
    whole, the instructions adequately equipped the jury to decide the case.

The Governing Principles

[143]

In criminal prosecutions, motive refers to ulterior intention  the
    reason or purpose underlying a persons conduct. The term is most often used to
    refer to the motive of an accused to commit the offence charged.

[144]

The authorities considering evidence of motive as a means of
    establishing the identity or anterior intention of the person who committed the
actus reus
of an offence emphasize the importance of a proven absence
    of motive in exculpation of an accused and a proven presence of motive in inculpation:
Lewis v. The Queen
, [1979] 2 S.C.R. 821, at pp. 825-37. But those same
    authorities underscore the significant difference between absence of proven
    motive and proven absence of motive:
Lewis
, at pp. 835-37.

[145]

Motive may also be significant in connection with witnesses in
    criminal trials. The motive of a witness to testify more or less truthfully may
    be a relevant factor for a trier of fact to consider in assessing their
    credibility and the reliability of their testimony. Thus, questions may be
    directed to a witness to show that the witness has a motive to fabricate
    evidence:
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.), at para. 120.

[146]

The distinction between absence of proven motive and proven absence
    of motive has equal application to the motives of a witness to fabricate
    evidence. By parity of reasoning with the motive of an accused to commit an
    offence, the absence of a demonstrated motive to fabricate on the part of a
    witness does not necessarily mean that there is no such motive. Nor does the
    absence of a motive to fabricate conclusively establish that the witness is
    speaking truthfully. The presence or absence of a motive to fabricate is a
    factor, a single factor, for the trier of fact to consider in assessing
    credibility:
Batte
, at para. 121.

[147]

Because the presence and absence of a motive to fabricate are
    relevant factors in the assessment of a witness credibility, it is open to
    counsel to refer to this issue in their closing addresses to the jury.
    Depending on what is said, it may become necessary for the trial judge to provide
    a corrective instruction:
R. v. L.L.
, 2009 ONCA 413
,
96 O.R. (3d)
    412
,
at paras. 40-47.

[148]

There is no closed list of circumstances that may require a trial judge
    to provide corrective instructions when counsel in their closing addresses have
    made submissions about a witness motive to fabricate. The obligation may be
    engaged where counsel suggests that the presence or absence of a motive to
    fabricate has been proven, but no such proof exists. Or where counsel invites
    the jury to focus on what had not been proven, such as a credible motive to
    lie, rather than what had been proven  creating a risk that the jury would
    reason that failure to demonstrate a motive to lie means the witness was
    telling the truth. Or where the address suggests that the accused has the
    burden of demonstrating a motive on the part of a prosecution witness to
    fabricate evidence:
Batte
, at para. 121;
L.
L.
, at paras.
    42, 47-50;
R. v. M.B.
, 2011 ONCA 76,
267 C.C.C. (3d) 72
,
at paras. 31-32.

[149]

Whether a corrective instruction will be required in light of
    counsels references to the motive of a witness to fabricate evidence depends
    on the circumstances of each case:
Batte
, at paras. 123, 126. The
    absence of an express instruction does not always leave the jury without the
    tools necessary to consider the presence or absence of a motive as a relevant
    factor in determining credibility. Juries are repeatedly told to use their
    common sense and their life experience in assessing the credibility of
    witnesses. It is difficult to think of a factor that, as a matter of common
    sense and human experience, would be more telling of a witness credibility than
    the existence  or the absence  of a motive to fabricate:
Batte
, at
    paras. 120, 126.

The Principles Applied

[150]

Several reasons persuade me that this ground of appeal fails.

[151]

First, the appellants complaint of prejudicial omission is raised
    for the first time on appeal. What is more, it represents a reversal of the
    position taken by experienced counsel at trial. When the Crown sought an
    instruction on motive, albeit on a different but related issue, defence counsel
    resisted it. Neither then nor subsequently did trial counsel seek the
    instruction now said to be essential to a fair trial and critical evaluation of
    the complainants testimony.

[152]

Second, this is a complaint about a failure to instruct -of
    non-direction rather than misdirection. Doubtless, more could have been said than
    was included in the final instructions. The same could be said of almost every
    jury charge. But perfection is not the applicable standard. Nor could it be.
    Final instructions must adequately equip jurors to perform their task. No more
    is required. No less is sufficient. And that task is to decide the case at
    hand. On the evidence adduced. In accordance with the governing legal
    principles. These instructions were adequate to that task.

[153]

Third, the subject-matter of the complaint is not estranged from the
    frequently invoked admonition to jurors to use their common sense and life
    experience. A motive to fabricate evidence would commend itself to the common
    sense and life experience of a juror as being of significance in an assessment
    of a witness credibility and the reliability of her evidence. Likewise, the
    absence of any such motive.

[154]

Further, the trial judges instructions about the assessment of
    evidence and the credibility of witnesses made it clear that the assessment
    required a holistic approach involving the consideration of myriad factors.

[155]

Finally, this is not a case in which the closing address of the
    Crown or the instructions of the trial judge expressly or by necessary
    implication shifted to the appellant the burden of establishing a motive on the
    part of the prosecution witness to fabricate. The burden of establishing guilt
    remained where it should have been, not dislodged by any requirement that the
    appellant prove a nefarious motive on the part of the complainant.

Ground #5: Closing Address of Crown Counsel

[156]

The final ground of appeal also alleges non-direction, a failure of
    the trial judge to provide an instruction to the jury to remedy things said by
    the Crown in his closing address to the jury.

[157]

A brief reference to the closing address of the Crown and what
    occurred thereafter will provide an adequate setting for the discussion that
    follows.

The Essential Background

[158]

This was a one-witness trial.

[159]

From time to time in his closing address to the jury, the Crown referred
    to the evidence of the complainant as uncontested or unchallenged. He also
    pointed out that C.H. wasnt really cross-examined much on the details she
    provided about the offences charged.

[160]

Trial counsel did not object to the Crowns closing address nor seek
    any remedial or corrective instruction to contain or alleviate any prejudice
    caused by it. The trial judge did not include any corrective directions in his
    final instructions, but did include references to the burden of proof, the
    presumption of innocence, and the standard of proof.

The Arguments on Appeal

[161]

The appellant says that the address of the Crown improperly urged
    the jury to consider how the defence was conducted as probative of the
    appellants guilt. This was wrong. It amounted to a subtle shift in the burden
    of proof. The questions asked, or not asked, by counsel are not evidence. They
    cannot be relied upon as evidence or a makeweight to satisfy the burden of
    proof settled upon the Crown. Further, the conduct of the trial is in the hands
    of counsel, not the accused. How counsel conducts the case  in particular, how
    counsel cross-examines witnesses  is not and cannot become evidence against an
    accused.

[162]

According to the appellant, these aspects of the Crowns closing
    address required remedial correction by the trial judge. None was provided. To
    the contrary, the trial judge exacerbated the problem by recounting these
    features of the Crowns closing as part of the position of the Crown the judge
    summarized in his charge to the jury.

[163]

The respondent contends that an assessment of the impact of any
    impropriety in the closing address on the fairness of the trial requires a
    contextual assessment of the trial as a whole. The issue is whether, viewed in
    this way, the remarks caused a miscarriage of justice. The answer is that no
    such miscarriage of justice occurred.

[164]

An important factor is the position of the appellant at trial.
    There, experienced counsel did not object to the Crowns closing. Or seek a
    mistrial. Or ask for a corrective instruction. While not dispositive, these
    omissions afford cogent evidence of the complete absence of prejudice arising
    from the closing address of the Crown.

[165]

In a case in which the evidence of the single witness is not the
    subject of contradictory evidence, there is nothing wrong with a reference in
    closing that the evidence is uncontradicted or unchallenged. This statement
    of the obvious is not a comment forbidden by s. 4(6) of the
Canada Evidence
    Act
because it does not invite the jury to use the failure to testify as
    an item of evidence or a makeweight to assist in satisfying the Crowns burden
    of proof. Nor does it shift the burden of proof.

[166]

The respondent acknowledges that the submission about the minimal
    cross-examination on the details of the incident of alleged sexual assault
    might have been better left unsaid. But no harm ensued. Trial counsel said
    nothing about it. And the trial judges instructions made it clear upon whom
    the burden of proof rested and where it did not lie.

The Governing Principles

[167]

Three principles inform our determination of this claim of error.

[168]

First, comments on the failure of counsel to cross-examine a witness
    on a particular issue  in this case, the details of the allegations.

[169]

As a general rule, it is improper to ask an accused about the
    conduct of the defence. More specifically, it is improper to ask about why a
    witness was not cross-examined on a particular issue, or to invite the jury to
    consider this failure in evaluating the defence case or the adequacy of the
    case for the Crown:
R. v. Brown
, 2018 ONCA 1064 (
Brown (ONCA)
),
    at paras. 13, 17.

[170]

Where an impropriety of this nature has occurred, it may create a
    risk that the jury will engage in speculation and, by extension, reverse the
    burden of proof:
Brown (ONCA)
, at para. 13. Where either of these
    prospects emerges, a corrective instruction may be required:
Brown (ONCA)
,
    at para. 18;
R. v. Prokofiew
, 2012 SCC 49, [2012] 2 S.C.R. 639, at
    para. 7.

[171]

Finally, on its own, use of the terms not denied, unchallenged
    or uncontradicted in relation to the testimony of a particular witness does
    not amount to a comment on the failure of an accused to testify which is
    prohibited by s. 4(6)
of the
Canada Evidence Act
, R.S.C. 1985, c. C-5
: see

R. v. Noble
, [1997]
    1 S.C.R. 874, at para. 97;
Prokofiew
, at para. 5; and
R. v. Biladeau
,
    2008 ONCA 833
,
93 O.R. (3d) 365
,
at paras. 21, 26-27. To run afoul of the prohibition, the comment
    must invite an inference of guilt from silence:
Biladeau
, at para. 23.

The Principles Applied

[172]

I would not give effect to this ground of appeal.

[173]

This ground of appeal arises out of submissions made by Crown
    counsel in his closing address to a jury at the end of a trial in which one
    witness testified. These submissions need not have been made to put the case
    for the Crown to the jury. In a sense, the submissions were a penetrating
    glimpse into the obvious: the jury was well aware that only one witness
    testified. They also knew that the accused did not testify and that he was
    under no obligation to do so. They saw and heard the manner in which defence
    counsel cross-examined the complainant.

[174]

The reference to the manner in which the defence was conducted  in
    particular, how defence counsel cross-examined the complainant  was of no
    evidentiary value in the jurys decision. Submissions about it risk attaching
    evidentiary significance to a trial event of no evidentiary value, thus risking
    a shift in the onus of proof.

[175]

Characterization of the complainants evidence as unchallenged or uncontradicted
    does not amount to a comment prohibited by s. 4(6) of the
Canada Evidence Act
because these terms attach no evidentiary significance to the failure. But, at
    least in this case, the term unchallenged was at best misleading. The complainants
    account was challenged in cross-examination as a complete fabrication, a show
    put on for the jury.

[176]

Despite these submissions in the closing address of the Crown, I am
    not persuaded that the appellant suffered any substantial wrong or that there
    was a miscarriage of justice as a result. Defence counsel did not object to the
    closing address of the Crown. He sought no corrective or remedial instruction.
    The charge to the jury made clear the onus and standard of proof. It also
    pointed out the presumption of innocence and explained that the accused did not
    have to testify, call evidence or prove anything. All of these instructions
    followed the closing address of the Crown. They were sufficient antidote to any
    residual prejudice that may have ensued from that address.

DISPOSITION

[177]

For these reasons, I would dismiss the appeal.

Released: DW
    March 4, 2020

David Watt J.A.

I agree. Grant Huscroft J.A.

I agree. M. Jamal J.A.


