



WARNING

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

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

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    that could identify the complainant or a witness shall not be published in any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

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

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

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

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

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

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

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

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




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. A.W.B., 2015 ONCA 185

DATE: 20150320

DOCKET: C56446

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.W.B.

Appellant

Mark J. Sandler and Amanda Ross, for the appellant

Sean Doyle, for the respondent

Heard: August 26, 2014

On appeal from the conviction entered by Justice Myrna L.
    Lack of the Superior Court of Justice, sitting with a jury, on October 17,
    2012.

Tulloch J.A.:

[1]

The appellant was charged with four counts of sexual offences involving
    the same teenage female complainant, who was a close family friend.  The
    incidents on which the charges were based occurred between March 1, 2008 and
    September 23, 2008.  During this period of time the complainant was 13 and 14
    years old.  The particulars of the charges are as follows:

·

Count 1: Sexual Assault, from March 1 to September 23, 2008;

·

Count 2: Sexual Interference
(Sexual
    touching
), from March 1, 2008 to April 30, 2008;

·

Count 3: Sexual Interference
(Sexual
    touching
), from May 1, 2008 to September 23, 2008; and

·

Count 4:
Invitation
to Sexual
    Touching, from May 1, 2008 to September 23, 2008.

[2]

Following a trial by judge and jury, the appellant was convicted on
    counts 1 and 3, and acquitted on counts 2 and 4.  Count 1 was conditionally
    stayed pursuant to
Kienapple v. The Queen
, [1975] 1 S.C.R. 729.  The
    appellant was sentenced on count 3 to imprisonment for one year followed by
    three years of probation.

[3]

The appellant contests his conviction.

[4]

The appellant raises two main grounds of appeal.  First, he submits that
    the verdicts are inconsistent and therefore unreasonable.  Second, he submits
    that the trial judge erred in her charge to the jury in a number of ways,
    including:

(a)     by directing the jury that they must consider the     evidence
    on each count separately;

(b)     by failing to give a
Vetrovec
[1]
warning with respect  to the complainants evidence;

(c)     by telling the jury that they could consider both       the
    differences and the similarities between the          complainants videotaped
    statement and her        testimony;

(d)     by failing to instruct the jury that the timing of the   disclosure
    of the sexual assaults, combined with           other factors, could give rise
    to a negative      inference about the complainants credibility;

(e)     by instructing the jury that certain evidence was     capable
    of corroborating the complainants          evidence;

(f)      by failing to provide a limiting instruction with         respect
    to evidence of the appellants alleged      treatment of his children; and

(g)     by telling the jury they could consider certain          hearsay
    statements to explain the complainants        state of mind and actions.

[5]

At the outset of oral argument, counsel for the appellant abandoned
    grounds (c) and (g), above.  As such, I will not be dealing with these grounds
    in my analysis.  For the reasons that follow, I would dismiss the appeal.

Background

[6]

The appellant, A.W.B., lives with his wife and their three children. 
    The complainant, G.A.S., and her mother, R.A., were close friends of the
    appellant and his family, and would often visit them socially.  The appellant
    was a father figure to G.A.S.  Beginning in 2006, R.A. babysat the appellants
    children while the appellant and his wife were at work.  Whenever the
    complainants mother would babysit, the complainant would often accompany her.
    From March to June 2008, R.A. and G.A.S. visited A.W.B.s home approximately 3
    times per week.

[7]

The appellant usually returned home from work while G.A.S. and her
    mother were babysitting.  Sometimes, he invited them to stay for dinner.  He
    would barbecue or order take-out.  G.A.S. often spent time with the appellant
    in the garage while he barbecued.  Afterwards, she sometimes drove with him in
    his car to pick up his wife from work.

The Alleged Assaults

[8]

G.A.S. testified that in March and April 2008, when she was still 13
    years old, she used the appellants hot tub with the appellants children.  The
    appellant was sometimes in the hot tub. She stated that he rubbed his foot up
    her leg.  At first she thought it was unintentional, because the hot tub was
    crowded, but when it happened more than once, she believed he did it
    deliberately.

[9]

G.A.S. testified that when she was 13 years old, the appellant began
    talking to her about birthday patty whacks  one smack on the buttocks for
    each year of age.  On one occasion, the appellant struck her buttocks.  This
    continued after she turned 14. She turned 14 in the middle of May 2008.

[10]

G.A.S.
    also testified that before and after she turned 14, when she was playing pool
    at the appellants home, the appellant pushed his crotch up against her
    buttocks.  As well, on occasion, after she turned 14 when she accompanied the
    appellant to pick up his wife from work, the appellant would put his hand on
    her left knee and squeeze it.  Sometimes, according to G.A.S., the appellant
    took her hand and placed it on the crotch of his jeans, holding it there. G.A.S.
    also said that the appellant often drove to pick up his wife when he was drunk.

[11]

G.A.S.
    testified that at the end of May 2008, on more than one occasion, when she and
    the appellant were barbecuing dinner in the garage, he hugged her, kissed her,
    and rubbed her buttocks.  She stated that sometimes the appellant turned the
    garage lights off, pushed her up against the wall and kissed her.  She
    testified that sometimes he put his hands up her shirt to feel her breasts
    above her bra.

[12]

According
    to the complainant, on September 23, 2008, she and her mother were at the
    appellants house.  The appellant was drinking beer and working in the
    backyard.  At the end of the day, G.A.S. helped the appellant move a portable
    pool or slide to the basement.  When they returned to the backyard, the
    appellant pushed her up against the outside wall of the house and put his
    tongue in her mouth, pushed up her bra and fondled her breasts.

Disclosure of the Alleged Assaults & G.A.S.s
    Statement to Police

[13]

R.A.
    testified that on September 26, 2008, she and the complainant were at the
    appellants home when she observed the complainant leaving the appellants
    oldest daughters room, crying and asking to go home.  While they were driving
    home, G.A.S. was upset, and she disclosed to her the assault which occurred on
    September 23.  R.A. wanted to contact the police, but G.A.S. refused.

[14]

The
    assaults were first disclosed to police by R.A. in November 2009 and G.A.S.
    subsequently provided a videotaped statement to police on December 7, 2009.

[15]

In
    her videotaped statement, the complainant stated she had told her best friend,
    J., about the assaults during the time period when the assaults were
    occurring.  When the police asked for J.s last name, G.A.S. requested that the
    police not contact her because she was dealing with her own problems and was
    unlikely to remember.  She later testified that she and J. had drifted apart. 
    The detective did not think it was necessary to contact G.A.S.s best friend,
    and did not do so.

[16]

The complainant also told police the appellant locked
    his children in their rooms, threw his youngest daughter on her bed, and threw
    a dresser drawer at his son.

Appellants Statement to Police

[17]

The appellant made a statement to police in which he
    acknowledged having a close relationship with the complainant, that she
    sometimes was in the garage with him when he barbecued and as well, at times
    she would accompany him when he picked his wife up from work.  He admitted to
    pinching G.A.S.s knee in the car.  He also confirmed that on September 23,
    2008, G.A.S. helped him bring something inside.  He stated that on that night,
    he hugged G.A.S. and kissed her on the cheek to thank her for helping.  In response
    to the officers suggestion that accidental touching might have occurred, the
    appellant agreed that he may have accidentally grazed G.A.S.s breasts.

G.A.S.s testimony at the Preliminary Inquiry

[18]

G.A.S.
    testified at the preliminary inquiry that the appellant pushed her up against
    the wall in the garage once. In her statement to police, she said it had
    happened multiple times.  In her testimony at trial, she acknowledged that her
    evidence at the preliminary inquiry on this point was not true.  As well, she
    acknowledged that it was important to tell the truth. In re-examination, G.A.S.
    explained that she found the lawyer at the preliminary inquiry confusing, and
    she gave the testimony in question at the end of the preliminary inquiry, when
    she wanted to leave.

A.

ANALYSIS

[19]

As
    stated above, the appellant raises essentially two arguments: that the verdicts
    are inconsistent and therefore unreasonable, and that the charge to the jury
    was deficient in a number of ways.  For the reasons outlined below, I would reject
    each ground of appeal.

(1)

Are the verdicts inconsistent, and therefore unreasonable?

[20]

The
    appellant submits that in order for him to have been acquitted on count 4,
    invitation to sexual touching, the jury must have rejected the complainants
    testimony that the appellant took the complainants hand and put it over his
    crotch while he was driving.  He argues that the jurys verdict can only be
    interpreted as a rejection of the complainants credibility.  It was therefore
    unreasonable to convict on count 3, as the underlying events took place in the
    same time frame, and involved the same complainant.

[21]

I
    do not agree.  The jury could have accepted the complainants evidence on all
    the counts yet still have acquitted on counts 2 and 4 on the basis of a
    reasonable doubt raised by the appellants evidence.  As pointed out by the
    respondent, the assessment of the evidence as between the testimony of an
    accused and that of prosecution witnesses is never a credibility contest.  For
    this reason, an acquittal in a case in which the accused gave evidence cannot
    be equated with a rejection of the complainants credibility.  Therefore, it
    cannot be said that the acquittal on count four can only be interpreted as a
    rejection of the complainants credibility such that the jury was not entitled
    in law to convict the appellant on any of the counts.

[22]

The
    jury may accept or reject some, none, or all of a witnesss evidence.  The
    appellants argument is premised on the assumption that if the jury rejects
    some of the complainants evidence, it must reject it all.  This clearly is not
    the law.  As stated by the Supreme Court of Canada in
R. v. Pittiman
,
    2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7:

The onus of establishing that a verdict is unreasonable on the
    basis of inconsistency with other verdicts is a difficult one to meet because
    the jury, as the sole judge of the facts, has a very wide latitude in its
    assessment of the evidence.
The jury is entitled to accept or reject some,
    all or none of any witnesss testimony.
Indeed, individual members of the
    jury need not take the same view of the evidence so long as the ultimate
    verdict is unanimous.  Similarly, the jury is not bound by the theories
    advanced by either the Crown or the defence.  The question is whether the verdicts
    are supportable on any theory of the evidence consistent with the legal
    instructions given by the trial judge.  [Emphasis added.]

[23]

The
    jury was entitled to accept some of the complainants evidence and reject other
    aspects.  The fact that the jury may have rejected some of the complainants
    evidence does not make it unreasonable for the jury to have accepted other
    parts of her evidence.

[24]

The
    appellant has not met the onus of establishing unreasonable verdicts as set out
    by this court in
R. v. McShannock
(1980), 55 C.C.C. (2d) 53, at p. 56,
    and approved of by the Supreme Court of Canada in
Pittiman
, at para.
    7:

Where on any realistic view of the evidence, the verdicts
    cannot be reconciled on any rational or logical basis the illogicality of the
    verdict tends to indicate that the jury must have been confused as to the
    evidence or must have reached some sort of unjustifiable compromise.

There is nothing inconsistent about the jury having
    reasonable doubt on count 4 about whether the appellant took the complainants
    hand and put it over his crotch, while being convinced beyond a reasonable
    doubt that he touched the complainant for a sexual purpose in one of the ways
    alleged in count 3.

[25]

According
    to the Supreme Court in
Pittiman
, at para 8, different verdicts may
    be reconcilable on the basis that the offences are temporally distinct, or are
    qualitatively different, or dependent on the credibility of different
    complainants or witnesses.

[26]

Although
    the alleged acts occurred in the same year between the appellant and the
    complainant, they were not inextricably interwoven:
McShannock
, at
    p. 55.  The acts occurred over a period of several months, and varied in
    content.  As explained below, the different verdicts can be reconciled on the
    evidence.

[27]

The
    hot tub, patty whacks and pool table incidents formed the subject of count 2.
     The patty whacks, pool table incidents, the squeezing of the complainants
    knee in the car, the garage assaults, and the September 23, 2008 assault all
    fell under count 3.  The subject matter of count 4 was the allegation that the
    appellant placed the complainants hand over the crotch of his pants while they
    were driving.  Count 1, alleging sexual assault over the entire period,
    functioned as a kind of catch-all, and included all the alleged assaults.

[28]

The
    conviction on count 3 and the acquittal on count 2 can be reconciled on the
    evidence for reasons unrelated to the complainants credibility.  The jury
    might have accepted the complainants evidence about the patty whacks and
    pool table incidents, but might nonetheless have had a reasonable doubt about
    the sexual purpose of these incidents, as the trial judge did in her reasons
    for sentence.  The jury might similarly have had a reasonable doubt about
    whether the hot tub incidents were intentional or accidental, especially
    considering the presence of others in the hot tub.  It could have had no such
    doubts about the sexual purpose of the garage assaults or the September 23
    assault.  Either of these assaults could have formed the basis for a conviction
    on count 3, but were not covered by the dates particularized in count 2.

[29]

The
    acquittal on count 4 and the conviction on count 3 can also be reconciled. The
    garage assaults and the September 23 assault were the material allegations
    under count 3, taking into account what I have said above about the patty
    whacks and pool table incidents.  Again, count four turned on the allegation
    that the appellant took the complainants hand and placed it on his crotch
    while they were driving.

[30]

These
    charges related to separate incidents with distinct evidence. While the
    incidents occurred between the same two people, they occurred at different
    times over a period of months, under different circumstances, and they involved
    different kinds of conduct.  The garage assaults and the September 23 assault
    occurred around the appellants home when the complainant was assisting the
    appellant with chores and preparing dinner.  The car incident was alleged to
    have occurred while the appellant was driving drunk to pick up his wife from
    work.  The jury was entitled to accept the complainants evidence on some of
    the incidents and not others, and indeed, there is evidence it could have
    relied on in doing so, in particular relating to the September 23 assault.

[31]

The
    complainants mother testified that the complainant wanted to leave the
    appellants home after the final assault on September 23 and was in a bad mood
    that evening.  She testified the complainant did not want to return to the
    appellants house on September 26, which was unusual.  This evidence tended to
    support the complainants account that she had been assaulted on September 23.  The
    complainants evidence on the circumstances surrounding the car rides was
    subject to significant challenge, in particular her evidence that the appellant
    frequently drove after he had had too much to drink, and that she went with him
    despite this.  Her mothers evidence contradicted hers in this respect.  This
    contradiction regarding the circumstances surrounding count 4 could have made a
    difference on that count, but would not have required the jury to reject the
    complainants evidence about the September 23 assault.

[32]

It
    was open to the jury to accept the complainants evidence with respect to the
    September 23 assault or the garage assaults and to convict the appellant on
    count three on that basis, even if it had a reasonable doubt about whether he invited
    her to touch him in his car in the manner alleged under count four.  Taking a
    realistic view of the evidence, the verdicts can be reconciled on a rational
    basis.

(2)

Was the charge to the jury deficient?

[33]

The
    appellant alleges a number of errors committed by the trial judge in her charge
    to the jury.  Below, I will address each of the alleged errors individually,
    but at the outset, it must be borne in mind that a jury charge must be viewed
    contextually to determine whether or not it achieves the function for which it
    is intended.  This standard was set out by this court in
R. v. Simon
,
    2010 ONCA 754, 104 O.R. (3d) 340, at paras. 44-45, leave to appeal to S.C.C.
    refused, [2010] S.C.C.A. No. 459:

We impose no requirement of perfection in jury instructions:
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at paras. 1-2. We
    test the adequacy of jury instructions in a functional way, holding them up
    against the purpose they are required to fulfill:
Jacquard
, at para.
    32.

Appellate review is not the legal equivalent of a laboratory
    experiment. Although a comparison to a post-mortem examination may be
    uncomfortably close, we do not dissect the final instructions, examine them
    every which way, find a misplaced word or ill-suited phrase and pronounce it the
    cause of death. We examine the charge as a whole, together with the evidence
    given at trial, all of it, and the positions of the parties:
Jacquard
,
    at para. 33;
R. v. Vézeau
, [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71,
    at pp. 285-86 S.C.R. An important, but not dispositive factor in determining
    whether appellate intervention is warranted is the failure of counsel to object
    to what is later advanced as prejudicial error:
Jacquard
, at paras.
    36-38;
R. v. Arcangioli
, [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, p.
    143 S.C.R.;
R. v. Thériault
, [1981] 1 S.C.R. 336, [1981] S.C.J. No.
    32, at pp. 343-44 S.C.R.

(a)

Direction to consider the evidence on each count separately:

[34]

The
    appellant submits that the trial judge erred when she instructed the jury that
    it must consider each charge separately and must not use evidence relating only
    to one charge in making its decision on any other charge.  While the appellant
    acknowledges the instruction to consider each charge separately was accurate,
    he argues that as the defence relied upon the complainants lack of credibility
    generally as the basis for rejecting her evidence in its entirety, the trial
    judge should have made clear to the jury that its reasonable doubt on counts on
    which it acquitted (and the evidentiary or credibility problems giving rise to
    that reasonable doubt) was relevant to whether it could be satisfied beyond a
    reasonable doubt on the remaining charges.

[35]

I
    do not agree.  I agree with the respondent that trial judges initial
    instruction that the jury was not to use evidence relating to one count in
    considering their decision on any other count served to remind the jury that
    each count in the indictment was a separate charge.  The appellant relies on
R.
    v. P.E.C.
, 2005 SCC 19, [2005] 1 S.C.R. 290, at para. 1, to support this
    ground of appeal.  However, that case simply holds that a trier of fact is
    entitled to apply credibility findings to different counts.  The instruction
    objected to on appeal does not prevent that.

[36]

The
    trial judges use of the word only makes it clear that the instruction was
    appropriate: You must not use evidence that relates
only
to one
    charge in making your decision on any other charge (emphasis added).  She did
    not prevent the jury from applying findings of the complainants general credibility
    to all counts.

[37]

Later
    in the charge the trial judge dealt squarely with the issue of the
    complainants credibility and instructed the jury that this evidence must be
    considered in respect of each count:

The overriding issue in this case is the credibility of the
    complainant [G.A.S.].
Credibility relates to a witnesss truthfulness and
    reliability.  Crown counsel must prove the essential elements of each alleged
    offence beyond a reasonable doubt.  In connection with each offence alleged in
    this case, the Crowns case is dependent on the evidence of [G.A.S.].
Consequently, with respect to each offence under
    consideration, you must be satisfied beyond a reasonable doubt that [G.A.S.]s
    evidence is credible on the essential elements of that offence as I have
    defined them, or that offence is not proven.
You do not need to
    find that [G.A.S.] is credible in everything that she said, apart from the
    essential elements of the offence under consideration.

You must consider and weigh all the evidence cumulatively
    and not in isolation or individually.

[Emphasis added.]

[38]

When
    viewed in the context of the charge as a whole, it is clear that the trial
    judge adequately instructed the jury on the complainants credibility.  As
    stated above, the trial judge instructed the jury that [t]he overriding issue
    in this case is the credibility of the complainant and that the jury must
    consider and weigh all the evidence cumulatively and not in isolation or
    individually.  The jury would not have believed that it was precluded from
    applying general credibility findings to different counts.

(b)

Direction respecting the credibility of the complainant and the lack of
    a special caution or
Vetrovec
warning:

[39]

The
    appellant submits that the trial judge erred in failing to instruct the jury to
    view the complainants evidence with caution.  The appellant argues that such a
    warning was necessary due to the complainants acknowledged history of lying,
    the fact that she did not tell the truth on one point at the preliminary
    inquiry, and the inconsistencies in her testimony.

[40]

I
    do not agree.  A trial judges decision to give a
Vetrovec
caution is
    a matter of discretion, rather than a duty:
R. v. Brooks
, 2000 SCC 11,
    [2000] 1 S.C.R. 237, at para. 2.  This exercise of discretion should generally
    be given wide latitude by appellate courts:
R. v. Bevan
, [1993] 2
    S.C.R. 599, at p. 614.  While a
Vetrovec
warning may be mandatory if
    the concern over the credibility of the witness and the importance of the
    evidence are great, there was no such requirement in this case.  Furthermore,
    while there may be inconsistencies in a witnesss evidence and concerns with
    the witnesss credibility, provided the trial judge acted judicially in
    exercising his or her discretion, an appellate court should accord a high
    degree of deference to the exercise of discretion.

[41]

Vetrovec
warnings are not restricted to cases of traditional unsavoury witnesses.  As
    observed by the Manitoba Court of Appeal in its recent decision,
R. v.
    Fatunmbi
, 2014 MBCA 53, 310 C.C.C. (3d) 93, at paras. 36 and 39, leave to
    appeal to S.C.C. refused, [2014] S.C.C.A. No. 366:

[I]nconsistencies in a witnesss evidence may attract a
    cautionary warning even if the witness does not fit the traditional definition
    of an unsavoury witness, but a warning is not required in every case where
    there are inconsistencies. If that were the case, almost every witness would
    attract a warning, as defence counsel can usually find some inconsistencies in
    a witnesss evidence, especially if the witness has given one or more police
    statements and then testified in an earlier preliminary inquiry or other
    proceeding.



[A] trial judge must weigh
the importance of the testimony
or the evidence to the determination of guilt and
the significance of the
    credibility problems
to determine whether to give a warning. [Emphasis
    added.]

[42]

In
    the present case, the complainants evidence was important to the Crowns
    case.  However, the fact that her evidence was essential does not make a
Vetrovec
warning mandatory:
R. v. Carroll
, 2014 ONCA 2, 304 C.C.C. (3d) 252, at
    para. 74, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 193.  The
    degree and nature of concern with regards to her credibility must be
    considered.  The appellant points to certain problems with the complainants
    credibility, such as her history of lying to her mother, inconsistencies in her
    testimony, and the fact that she admittedly made an untrue statement at the
    preliminary inquiry.  However, the mere fact that a witnesss credibility was
    in issue is not sufficient to interfere with the trial judges discretion not
    to give a
Vetrovec
warning.

[43]

Trial
    judges must consider not only the degree to which credibility is a concern;
    they must consider as well the nature of the particular credibility problems,
    and whether lay members of the jury are adequately equipped to assess the
    witnesss credibility.  According to
Carroll
, at para 78, [t]he
    rationale that underpins a
Vetrovec
caution originates in the concern
    that, for certain types of witnesses, lay members of the jury simply lack the
    critical experience to adequately gauge the credibility of these types of
    witnesses and the reliability of their evidence.  The concerns raised by the
    appellant regarding the complainants credibility relate to lies that she had
    told or misstatements she made in the past.  There is no reason to think that a
    contemporary Canadian jury would not be capable of taking this into account
    given the trial judges instructions on her credibility and the position of the
    defence in that respect.

[44]

The
    trial judge did not consider it necessary to give a
Vetrovec
warning. 
    This was fully within her discretion to decide.  What is more, defence counsel
    did not ask the trial judge to provide a
Vetrovec
warning or to
    strengthen the language in her charge regarding the complainants credibility.  In
    my view, the trial judge was aware that the complainants credibility was in
    issue, and adequately conveyed this in her charge to the jury.  As such, this
    ground of appeal must fail.

(c)

Direction on the complainants delay in reporting:

[45]

The
    appellant submits that trial judge erred when she instructed the jury that the
    complainants delay in reporting the sexual assaults could not on its own give
    rise to an inference against the complainants credibility.  The appellant
    contends that when the delay is combined with other factors, such as the
    complainants efforts to dissuade the police from contacting her best friend,
    the potential inference that the complainant lied about disclosing sexual abuse
    to her best friend, and the fact that she continued to frequent the appellants
    home and vehicle, the jury was entitled to draw a negative inference about the
    complainants credibility.  The appellant asserts that the trial judge should
    have instructed the jury accordingly.  Again, I would reject this ground.

[46]

The
    trial judges instruction on the timing of disclosure of sexual abuse was
    appropriate and reflected the guidance provided by the Supreme Court of Canada
    in
R. v. D.D.,
2000 SCC 43, [2000] 2 S.C.R. 275,
at paras. 63-65.  The trial judge was careful to state in the charge to
    the jury that [a] delay in telling someone about sexual abuse,
standing by
    itself
, will never give rise to an adverse inference against the
    credibility of a complainant (emphasis added).  The appellant has cited no
    authority compelling a trial judge to instruct a jury on inferences that may be
    drawn when delay in disclosure is considered in conjunction with other
    factors.  Furthermore, the appellant did not object to the jury charge.  The
    jury was aware of the defences concerns about the complainants credibility in
    this respect.  In the circumstances, I see no error regarding this aspect of
    the judges charge.

(d)

The review of the Crowns position on corroboration:

[47]

The
    appellant submits that the trial judge erred by instructing the jury that the
    evidence of the complainants mother and the appellants statement to police
    corroborated the complainants testimony.  The appellant relies on this courts
    decision in
R. v. G.(G.)
(1995), 97 C.C.C. (3d) 362
,
at p. 375, for the proposition that [e]vidence that is equally consistent with
    either of two diametrically opposed possibilities does not  lend support to
    either one of them.  The appellant submits that the evidence of the mother and
    the appellant was neutral, and not corroborative of the complainants evidence.

[48]

The
    Crown submits that the evidence of the appellant and the mother could be
    probative of issues in dispute.  Particularly, this evidence could be probative
    of opportunity to commit the offence, the complainants credibility, and could
    also provide an explanation for why the complainant continued to frequent the
    appellants residence and for the timing of the complaint.  The Crown relies on
R. v. M.(F.S.)
(1995), 111 C.C.C. (3d) 90 (Ont. C.A.), at p. 97, which
    distinguishes
G.(G.)
on the basis that where opportunity is in
    dispute, evidence that is probative of opportunity can be confirmatory of the
    complainants allegations.

[49]

I
    would reject this ground.  At the outset, I would note that corroborating
    evidence was not required for the jury to convict the appellant in this case:
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 274.

[50]

Reading
    this part of the charge as a whole, it is apparent that it did not function
    only to catalogue evidence the Crown submitted was corroborative.  It also
    served as a summary of the evidence relied on by the Crown and a summary of the
    Crowns position on the evidence more generally.  It included, for example,
    some evidence from R.A. and the appellant that contradicted the complainants
    account, and an explanation of the Crowns position on that evidence.  Not all
    of the evidence summarized by the trial judge was put forward as potentially
    corroborative of the complainants evidence.

[51]

Second,
    many of the references to potentially corroborative evidence related to issues
    raised over the course of trial.  For example, defence counsel challenged why
    the complainant would continue visiting the appellants home when she was being
    assaulted and questioned her delay in disclosing the abuse.  The appellant and
    R.A.s evidence on the closeness of the families tended to explain the particular
    issue of her delay in disclosing, namely, the high value the complainant said
    she placed on these relationships and her desire not to hurt the appellants
    family as a whole.

[52]

Third,
    to the extent that the trial judge referred to evidence that could not
    corroborate the complainants account according to the definition of
    corroboration in
G.(G.)
, this evidence was innocuous.  The trial judge
    clearly instructed the jury that the complainants credibility on the essential
    elements of the offences charged was the main issue in the trial.  The jury was
    more than capable of appreciating that the consistency between witnesses on
    tangential and not particularly contentious points did not bolster the
    complainants credibility on the essential elements of the offences.

[53]

Finally,
    the trial judge did not state that this evidence in fact corroborated the
    complainants account.  Her review of the evidence was made under the heading
    Position of the Crown.  Upon completing her summary of the Crowns case, the
    trial judge stated, As I said, that is the position of the Crown.  The trial
    judge then proceeded to lay out the position of the defence, which included
    inconsistencies between the evidence of the complainant and that of her
    mother.  The jury could not have been left with the understanding that the
    mothers evidence was definitively corroborative of the complainants evidence;
    rather, it was correctly left with the understanding that this was the Crowns
    position, and it was for them to decide whether the mothers testimony and the
    appellants recorded interview corroborated the complainants account of events
    on material issues.

(e)

Failure to provide a limiting instruction on evidence of the appellants
    alleged mistreatment of his children:

[54]

The
    appellant submits that the trial judge erred by not providing a limiting
    instruction with respect to evidence, which was contested by the defence, that
    the appellant exhibited violent conduct towards his own children.  The
    appellant argues that there is a risk the jury could have wrongfully used this
    evidence to infer that because he abused his children, he was more likely to be
    guilty of the offences charged.  The respondent submits that the evidence would
    not cause moral prejudice or reasoning prejudice, and that realistically, the
    jury would only have used this evidence to assess the complainants
    credibility.  Alternatively, the respondent relies on the curative proviso and submits
    that this evidence would not have affected the verdict, noting that defence
    counsel never sought a limiting instruction at trial.

[55]

While
    I do agree with the appellant that it would have been preferable for the trial
    judge to provide a limiting instruction, in my view, when the charge and the
    evidence are considered in their entirety, the absence of a limiting
    instruction would not have affected the verdict.

[56]

It
    is settled law that it is impermissible for a trier of fact to reason that a
    person is more likely to have committed the offence charged because of his or
    her bad character:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at
    para. 139.  Evidence of bad character that shows only that [the accused] is
    the type of person likely to have committed an offence with which she or he is
    charged is inadmissible:
R. v. T.(J.A.)
, 2012 ONCA 177,

288
    C.C.C. (3d) 1, at para. 51.  When bad character evidence is admitted into a
    jury trial, a limiting instruction should be provided to the jury.  The
    instruction includes three elements, as summarized by Watt J.A. at para. 53 of
T.(J.A.)
:

i.

a description of the evidence to which the instruction applies;

ii.

a positive instruction advising the jury about the use they may make of
    the evidence (the permitted use); and

iii.

a negative instruction directing the jury about the use they must not
    make of the evidence (the prohibited use).

[57]

This
    rule is of general, but not unyielding application:
T.(J.A.)
, at
    para. 65.

[58]

A
    limiting instruction would certainly have been preferable in the present case. 
    The complainants videotaped statement contained evidence that the appellant
    threw a drawer at one of his children, threw another child onto her bed, and
    locked his children in their bedrooms.  This evidence created the risk that the
    jury would impermissibly reason that the appellant was more likely to have
    committed the sexual offences charged because he was violent towards his own
    children.  Evidence that the appellant had exhibited violence toward his
    children had very little probative value and is, when viewed in isolation,
    prejudicial.  A limiting instruction should have been provided.

[59]

However,
    there are several reasons why the absence of a limiting instruction, standing
    alone, does not create a reversible error in this case.

[60]

First,
    the prejudicial evidence was not a prominent element in the evidence, viewed as
    a whole.  The trial judge summarized for the jury the relevant evidence on each
    count.  The evidence in question was not included in these instructions.

[61]

Second,
    to the extent that the evidence in question was mentioned in the charge to the
    jury, it was in the context of the Crowns and defences positions on the
    complainants credibility.  In explaining the Crowns position that the
    complainants evidence was corroborated by her mothers evidence, the trial
    judge stated that the complainants mother testified to hearing a noise and
    seeing [one of the appellants children] running from the area, in
    circumstances similar to what [the complainant] had told the officer in her
    videotaped interview in recounting that [the appellant] threw a dresser drawer
    at [his child].  In the review of the defence position, the trial judge
    pointed out how the complainants evidence on the appellants conduct differed
    in her various statements and was contradicted by her mothers testimony. In
    this context, the jury would have understood that the evidence could be used to
    assess the complainants credibility.  No other purpose was suggested.

[62]

Finally,
    it should be noted that the defence never requested a limiting instruction at
    trial and did not object to the charge on this basis.  While this is not
    determinative, it is an important factor:
Simon
, at para. 45.  I would
    reject this ground of appeal.

B.

disposition

[63]

For
    the reasons outlined above, I would dismiss the appeal.

Released: DW Mar 20, 2015

M. Tulloch J.A.

I agree. David Watt
    J.A.

I agree. M.L.
    Benotto J.A.





[1]

Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.


