



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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.

6.

(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

7.

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

8.

(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. Dawson,
2016
    ONCA 880

DATE: 20161123

DOCKET: C61037

Feldman, Simmons, Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth David Dawson

Appellant

Kenneth Dawson, acting in person

Erika Chozik, appearing as duty counsel

Leslie Paine, for the respondent Crown

Heard: April 7, 2016

On appeal from the convictions entered on July 29, 2015
    and the sentence imposed on September 14, 2015 by Justice Alan C. R. Whitten of
    the Superior Court of Justice, sitting with a jury.

Feldman J.A.:

[1]

The appellant was convicted by a jury of sexual interference and sexual assault
    of two very young girls each around five years old, for whom he occasionally
    babysat. The two convictions for sexual assault were stayed by the trial judge
    applying
R. v. Kienapple
, [1975] 1 S.C.R. 729 and the appellant was
    sentenced to two years imprisonment in respect of each count of sexual
    interference to be served consecutively. He appeals his convictions and seeks
    leave to appeal sentence.

Background

[2]

The first complainant, A.S., lived with her mother across the hall from
    the appellant and his common law spouse in an apartment building. The mother
    was in her early 20s and had a longstanding relationship with the appellants spouse,
    who was like a mother to her. A.S. referred to the appellant and his spouse as grandpa
    and grandma. A.S. spent a lot of time at the appellants apartment from 2012 to
    2013 before her mother moved. The mother identified two occasions when A.S. was
    alone with the appellant, one in August 2012 and one in January 2013.

[3]

A.S. gave a videotaped statement to the police in April 2013 when she
    was five years old. That statement was played at the trial and she was asked
    questions about it and about her allegations. The trial took place when she was
    seven years old.

[4]

She testified consistently that the appellant touched her pee-pee,
    which she pointed to as her private parts, with his finger and with his
    pee-pee. She also said he put his pee-pee into her pee-pee but that she had
    her clothes on when this happened. She also drew a picture while giving her
    video statement to the police, which was adopted by her at trial, and which
    shows a male with a large penis lying with another person. She identified the
    people in the picture as the appellant and herself. She testified that she had
    not seen anyone elses pee-pee other than grandpas.

[5]

Her mother testified that although there had been a number of adult
    males that the child knew, the only one she referred to as grandpa was the
    appellant. A.S. drew a picture of her assailant for the Childrens Aid Society
    (CAS), which showed him with hair on his head. The picture she drew of the
    assailant during the police interview did not include hair, but A.S. told the
    officer that she had not finished drawing the hair. While the appellant does
    not have hair on his head, A.S. explained that she likes drawing hair on peoples
    heads.

[6]

The other complainant, B.A., was a few months younger than A.S. B.A.s mother
    testified that she was a friend of the appellants spouse. Her mother left B.A.
    alone with the appellant on two occasions, once in February 2013 at the
    apartment and the second time in April 2013, at the appellants new address. B.A.
    called the appellant Uncle David and did not refer to anyone else by that name.

[7]

B.A. also gave a videotaped statement to the police in April 2013. She
    was four years old at the time and seven at the trial. In the video statement,
    she talked about playing the baby game with Uncle David where they took turns
    being naked like a baby, and where he got milk on her which came from where he
    went pee. She said she played the baby game both at his apartment and at his
    new house. She also mentioned that there were snakes in the room and trophies
    and referred to eating them.

[8]

The videotaped statement was played at the trial. B.A. said she
    remembered giving it, that she was telling the policeman the truth and that she
    remembered the things she talked about concerning Uncle David and the baby
    game. However, on cross-examination at trial, she was unable to give any testimony
    about the events. She remembered Uncle David and his spouse but not playing the
    baby game, although she did remember Uncle David feeding her bottles of milk.
    She did not remember the snakes or trophies.

[9]

The appellant did not testify at the trial. The jury convicted the
    appellant of sexual interference and sexual assault of both young girls.

Issues on the Conviction Appeal

[10]

Duty counsel, on behalf of the appellant, raised three issues on the
    conviction appeal: 1) unreasonable verdict; 2) prejudicial interruption of the
    defence closing submissions to the jury by the trial judge; and 3) insufficient
    caution on the use of the evidence of one complainant to corroborate the other
    and on the risk of propensity reasoning.

Analysis

1)

Unreasonable
    Verdict

[11]

A court on appeal will set aside a verdict of guilt as unreasonable
    where it finds that there was no evidence on which a properly instructed jury
    could make a finding of guilt.
R. v. Biniaris
, 2000 SCC 15, [2000] 1
    S.C.R. 381.

[12]

The appellant points to four aspects of the evidence that he argues make
    the verdicts unreasonable. The first three relate to the first complainant A.S.
    The effect of the appellants argument is that there was evidence that should
    have raised a reasonable doubt. The three areas of evidence he relies on are:
    1) the picture the complainant drew for the CAS of the man who touched her had
    hair on his head, while the appellant does not; 2) A.S. said that the assailant
    put his pee-pee into her but there was no evidence of any injury; and 3) the
    evidence of the mother was that A.S. had been left alone with six separate men,
    giving all of them the opportunity to assault her.

[13]

The appellant is correct that any of these aspects of the evidence,
    either taken together or separately, could have left the jury with a reasonable
    doubt about whether the assault or sexual interference happened at all or that
    he was the perpetrator. Defence counsel at trial explored all of this evidence
    on cross-examination and relied on it in his closing submissions to the jury.
    The trial judge also referred to it in his statement of the position of the
    defence.

[14]

However, there was an explanation in the evidence for each of these
    alleged inconsistencies. The complainant testified that she liked drawing
    pictures of people with hair. Although she at some points said that the
    appellant had put his pee-pee into hers, as she was consistent that she had her
    clothes on, no injury would be expected. She was also definite in identifying
    the appellant and not the other men as the perpetrator. The jury was entitled
    to accept the evidence of A.S. as to what occurred and that it was the
    appellant who did it. This court is also entitled to consider that the
    appellant did not testify to dispute the complainants evidence when
    considering whether the verdict is unreasonable.
R. v. Pannu
, 2015
    ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 478
    and [2015] S.C.C.A. No. 498, at para. 164. There is no basis to consider the
    verdict to be unreasonable in respect of A.S.

[15]

In relation to the second complainant, B.A., duty counsel submits that
    because B.A. could not remember the events at trial, the conviction was based
    solely on the evidence she gave in her police statement at the time. However,
    in that evidence the complainant included fanciful references to snakes and
    trophies, showing that she confused fact with fantasy.

[16]

I would not give effect to this submission. Although B.A. could no
    longer remember the assault by the time of the trial, she did remember the
    police interview and confirmed that what she said was true. She also remembered
    Uncle David. Although she did not remember any snakes and trophies, the jury
    was alerted to this issue by defence counsel and it was referred to by the
    trial judge in his charge.

2)

Trial Judges Interruption
    of Defence Counsels Closing Address to the Jury

[17]

During his closing address, defence counsel showed flash cards to the
    jury illustrating the points he was making and was proceeding to tape up one of
    the cards that showed a doctor examining a child, when the trial judge
    indicated that he had made his point. Counsel then asked to speak to the court
    in the absence of the jury. Counsels point was that there was no physical or
    medical evidence to substantiate the complainants claims and no DNA evidence. The
    trial judge was concerned that this flash card was misleading and unnecessary. Following
    their discussion, the trial judge ruled that counsel could use the flash cards
    but that they would not go before the jury in the jury room. The trial judge
    did not denigrate counsel in front of the jury.

[18]

I am satisfied that nothing the trial judge did caused any prejudice to
    the appellant. Defence counsel did not seek to pre-clear with the trial judge
    his use of flash cards that were not evidence at the trial. The trial judge was
    entitled to control the process in his court and to ensure that the jury was
    given only properly admitted material. Following the discussion in the absence
    of the jury, defence counsel continued directly with his address on the same
    subject, sticking to the evidence on the issue of any injury to the complainant
    A.S. I would not give effect to this ground of appeal.

3)

Failure to Give a
    Propensity Warning

[19]

The appellant was charged with two counts against each of the two
    complainants in one indictment. The evidence presented was not put forward as
    similar fact evidence. Therefore, the jury had to be clearly instructed that
    they had to keep separate the evidence that related to each count and each
    complainant. The trial judge gave the jury clear instructions on this point in
    a number of ways throughout the charge.

[20]

I will set out two examples:

1)

[A]s you know
    there are four charges. Each count, one, two, three, four. Its essentially an
    offence within itself. Its like having been charged with four offences.
Each of these counts is a separate charge. You must make a
    separate decision and give a separate verdict for each charge. Your verdicts
    may, but do not have to be the same on each charge. You must make your decision
    on each charge only on the basis of the evidence that relates to that
    particular charge and the legal principles that I tell you to apply to your
    decision on that charge.
Now, obviously, because theres a repetition of
    the nature of the offence, I will, you will take those instructions, but you
    will carry them over to the other count and apply it individually.
You must not use the evidence that relates only to one charge
    in making your decision on any other charge.
[Emphasis added.]

2)

As I indicated,
    Mr. Dawson is presumed innocent of each charge. You must consider each charge
    separately and return a separate verdict for each charge based only on the
    evidence and the legal principles that apply to it. For each charge your
    verdict will depend on your assessment of the evidence and your application of
    the legal principles that relate to that charge. Your verdict sheet, as Ive
    told you, will show you the verdicts available on each charge and I will tell
    you about that. So an analogy that I would give is that each charge is like an
    island.
Youve got to stay on the island, on a particular
    island until you resolve what constitutes the evidence in that particular case
    and come to your conclusion, whether it be beyond a reasonable doubt as to
    guilt or innocence. You dont take anything with you to the next island. Youve
    got to start afresh and consider the evidence and the law in so far as that
    particular issue is concerned.
[Emphasis added.]

[21]

The appellant submits that in addition to these instructions regarding
    the separation of the evidence applicable to each count, the trial judge was
    also required to instruct the jury that they could not use the evidence
    concerning the appellant and one of the complainants as bad character or
    propensity evidence in their consideration of the evidence in relation to the
    other complainant.

[22]

The seminal case from this court on this requirement is
R. v. B.M.
(1998), 42 O.R. (3d) 1. In that case, the appellant was charged with multiple
    offences including rape, indecent assault, invitation to sexual touching,
    incest, as well as weapons offences, against multiple complainants of all ages
    and both sexes, as well as bestiality with two dogs. The trial judge did not
    adequately instruct the jury to deal with each count separately or as to the
    use they could make of the evidence on the different counts. On appeal, this
    court held, at p. 14, that the charge to the jury was inadequate in two
    respects:

First, when evidence of one count is not admissible as similar
    fact evidence on the other counts, jurors must be instructed to consider each
    charge separately and not to use evidence relating to one count as evidence on
    any of the other counts.



Second, [
R. v. Rarru
, [1996] 2 S.C.R. 165] requires
    the trial judge to give the jury a proper limiting instruction regardless of
    whether evidence of other counts or of uncharged misconduct is admissible as
    similar fact evidence. It was essential that the jury be instructed that it
    was not to rely on the evidence of other counts or other uncharged misconduct
    as proof that the accused is the sort of person who would commit the offence or
    offences charged.

[23]

In that case, the court also held that the bestiality counts should have
    been severed because including them with the sexual misconduct counts served only
    to invite the jury to engage in forbidden propensity reasoning, especially
    where no limiting instruction was given. A new trial was therefore ordered.

[24]

These requirements have been reiterated in a number of cases of this
    court since
B.M.
In those cases, unlike in this case, the trial judge had
    failed to give both of the charges discussed in
B.M.
, that is to keep
    the evidence of each count separate and not to engage in propensity reasoning.
    See for example:
R. v. K.P.
, 2009 ONCA 408, 252 O.A.C. 10 and
R.
    v. F.J.H.
, 145 C.C.C. (3d) 169.

[25]

Cromwell J.A. (as he then was) explained in the Nova Scotia Court of
    Appeal decision in
R. v. T.C.F.
, 2006 NSCA 42, 243 N.S.R. (2d) 237, at
    paras. 30-31, that three related points must be brought home to the jury to
    counter the prejudice inherent in a multi-count indictment. However, he noted
    that the second two are really just examples of the first. The first is that
    only the evidence admissible with respect to the particular count can be
    considered when determining guilt or innocence on that count (the instruction
    to keep the evidence relating to each count separate). The second is that a
    finding of guilt on one count is not evidence of guilt on another. And the third
    is that evidence of discreditable conduct or criminal acts cannot be used to
    reason that the accused is the type of person who would have committed any of
    the offences (the propensity reasoning instruction).

[26]

The fact that the second two are actually examples of the first critical
    instruction  that the jury must keep the evidence on each count separate  means
    that failure to give a propensity warning is not always fatal. Rather, the
    court may tailor the charge in a particular case to suit the circumstances of
    that case.

[27]

This point was made in
R. v. J.A.T.
, 2012 ONCA 177, 288 C.C.C.
    (3d) 1 where Watt J.A., referring to
B.M.
and
Rarru
, reiterated
    the rule that in a trial where there are multiple complainants and counts, but
    not similar fact evidence, the jury should be instructed 1) not to use the
    evidence from one count as proof of another count, and 2) not to use the
    evidence from one count to conclude that the accused is a person of bad
    character, who is therefore likely to be guilty of another count. Watt J.A.
    explained that the second rule is a limiting instruction that tells the jury
    the permitted and prohibited uses of the evidence, and that [t]he rule is of
    general, but not unyielding application. (paras. 55 and 65).

[28]

As such, the necessity of giving a propensity instruction is determined
    based on the particular circumstances of the case. In some cases, a propensity
    instruction is unnecessary and the failure to give one will not be fatal. See
    for example,
R. v. Miller
, 1999 CarswellOnt 3130 (C.A.);
R. v.
    Cote
, 2003 NBCA 38, 176 C.C.C. (3d) 89;
R. v. H.S.S.
, 2009 ONCA
    102, 242 C.C.C. (3d) 262; and

R. v. A.W.B.
,

2015 ONCA
    185, 322 C.C.C. (3d) 130. In other cases, a propensity instruction is required,
    such as where other discreditable conduct by the accused is brought into
    evidence. See for example,
R. v. R.O.
, 2015 ONCA 814, 333 C.C.C. (3d)
    367;
R. v. Chamot
, 2012 ONCA 903, 296 C.C.C. (3d) 91; and
R. v.
    B.D.
, 2016 ONCA 673.

[29]

In
R. v. J.R.M.
, 2015 ONCA 229, the failure to give the propensity
    instruction was not fatal  however, the trial judges failure to give the
    instruction to keep the evidence relating to each count separate was. There, two
    very young sisters complained at the same time to their grandparents that they
    had each been sexually abused by the appellant. The court held that the jury
    was unlikely to engage in propensity reasoning because of the interrelated
    nature of the complainants disclosure, and therefore the trial judges failure
    to give the propensity reasoning instruction did not cause prejudice.

[30]

However, it was essential for the trial judge to warn the jury that it
    must not use the evidence of one count to prove any other count. The failure to
    give that critical instruction was fatal to the conviction.

[31]

Crown counsel on this appeal submitted that while it would have been
    desirable to include a propensity warning, in the circumstances of this case
    the instruction the trial judge gave was more than sufficient to address any
    concern that the jury may have cross-pollinated the evidence in relation to the
    two complainants. I agree with this submission.

[32]

The trial judge emphasized a number of times and in a number of ways
    that the jury must keep the evidence regarding each complainant separate. One
    of those (quoted above) was his analogy to an island to emphasize the point:

So an analogy that I would give is that each charge is like an
    island.
Youve got to
    stay on the island, on a particular island until you resolve what constitutes
    the evidence in that particular case and come to your conclusion, whether it be
    beyond a reasonable doubt as to guilt or innocence. You dont take anything
    with you to the next island. Youve got to start afresh and consider the
    evidence and the law in so far as that particular issue is concerned.

[33]

Further, from the record there was no suggestion in either address by
    counsel that the jury should use the evidence in the prohibited manner. Nor did
    defence counsel request the propensity charge in addition to what the trial
    judge did say, nor was an objection made. Although none of these factors is
    definitive, they address the concern whether there was potential prejudice in
    this case.

[34]

Finally, this was not a case where there was evidence of acts of disreputable
    conduct that were not the subject of the charge, making the likelihood of
    prejudice strong, or where the charged conduct was so prejudicial in itself,
    such as bestiality, that prejudice was virtually inevitable. In this case,
    there were two complainants allegations with significant differences. There
    was no direct evidence of collusion. Also, the defence was a complete denial 
    not that it may have happened in one case but not the other.

[35]

The appellant submitted that because the complainant B.A. could not
    remember the events at trial, there was a risk, as in
J.R.M.
, that the
    jury would use the other complainant A.S.s evidence as corroborative of that
    of B.A. In my view, the result in
J.R.M.
is instructive for this
    appeal. In that case, where neither of the two instructions was given, the
    court held that it was only the failure to give the admonition to keep the
    evidence separate that was necessary, not the propensity instruction. In this
    case, reading the charge as a whole, including the numerous admonitions to keep
    the evidence separate and explanations of how to do that, the propensity
    instruction, as an example or amplification of that instruction, was not
    essential for the jury to understand that rule.

[36]

I would not give effect to this ground of appeal.

Sentence Appeal

[37]

Following the stay of the two sexual assault convictions, the appellant
    was sentenced to two years consecutive on each of the sexual interference
    charges. He submits that the sentence was unreasonably high and that the trial
    judge failed to take into account the following four factors:

1)

The conduct was
    at the lower end of the spectrum because there was no penetration or extraneous
    threats of violence;

2)

There is no
    reason why the mandatory minimum sentence of one year would not be appropriate
    in the circumstances;

3)

The breach of
    trust was of a very low level as the appellant was just a neighbour; and

4)

The appellant is
    51 and has no prior criminal record.

[38]

There is no basis to interfere with the sentence imposed. The trial
    judge considered all of the facts and circumstances. He did not consider these
    offences to be at the lowest end of the spectrum given the age of the victims,
    the limited position of trust of the appellant, and the nature of the sexual
    acts. Counsel at trial acknowledged that consecutive sentences were
    appropriate. Crown counsel asked for two to three years for each count
    consecutive. The trial judge did not err in the exercise of his discretion to
    impose a sentence of two years for each. I would not allow the sentence appeal.

Result

[39]

I would dismiss the appeals against conviction, grant leave to appeal
    sentence and dismiss the appeals against sentence.

Released: November 23, 2016 (K.F.)

K. Feldman J.A.

I agree. Janet Simmons J.A.

I agree. S.E. Pepall J.A.


