



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    that could identify the victim or a witness shall not be published in any document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 complainant's 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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Warren, 2016 ONCA 104

DATE: 20160205

DOCKET: C52923

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geoffrey Warren

Appellant

Kristin Bailey, for the appellant

Jessica Smith Joy, for the respondent

Heard: October 28, 2015

On appeal from the conviction entered on February 23,
    2009 by Justice Raymond Harris of the Superior Court of Justice, sitting with a
    jury.

L.B. Roberts J.A.
:

Overview

[1]

The appellant, Geoffrey Warren, appeals
    from his conviction by a jury of the offence of sexual interference for acts
    involving the complainant contrary to s. 151(a) of the
Criminal Code
    of Canada
, R.S.C. 1985, c. C-46. His conviction
    for sexual assault of the complainant was stayed in accordance with
R.
    v. Kienapple
, [
1975]
1 S.C.R. 729.

[2]

The appellant advances two grounds of
    appeal:

(1)

The
    trial judge erred in failing to give a limiting instruction on the
    complainant's prior consistent statements.

(2)

The
    jury charge was unbalanced and favoured the Crown's position.

(3)

As
    I would allow the appeal on the first ground, it is unnecessary to deal with
    the second ground.

The complainant's evidence

[3]

The complainant was almost 13 years old
    when she testified at trial. She said that the appellant touched her "private
    parts" with his "private parts" on more than 10 occasions when she was 6 or 7
    years old, during the times that the appellant babysat her with her younger
    sister at the appellant's apartment.

[4]

The complainant was thoroughly
    cross-examined by defence counsel on the major inconsistencies present in her
    prior statements to her grandmother and the police, and in her evidence at the
    preliminary inquiry and at trial. Those inconsistencies included the
    perpetrator, nature and severity of the assaults.

[5]

In the re-examination of the
    complainant, the examination of her grandmother, and in closing argument, the
    Crown referenced the complainant's prior consistent statements of her complaint
    to rehabilitate the complainant's credibility and reliability.

Analysis

Positions of the parties

[6]

The appellant concedes that the
    complainant's prior consistent statements were admissible for the purpose of
    showing the narrative and context of the complainant's complaints. No issue is
    taken with the Crown's use of the statements.

[7]

The focus of the appeal is on the absence
    of a limiting instruction. The appellant submits that the trial judge erred in
    failing to warn the jury that the complainant's prior consistent statements
    could not be used for their truth, to prove that sexual contact had occurred.

[8]

The Crown argues that a warning was
    unnecessary, as it was the defence that elicited most of the prior statements. Defence
    counsel did not request the limiting instruction at trial.

Standard of review

[9]

To succeed on this appeal, the
    appellant must establish that a jury instruction concerning the use that the
    jury could make of the complainant's prior consistent statements should have
    been given and that its omission amounted to legal error. See
R. v.
    Sarrazin
, 2010 ONCA 577,
259 C.C.C. (3d) 293,
at para. 65,
    aff'd 2011 SCC 54, [2011] 3 S.C.R. 505.

Use of prior consistent statements

[10]

Prior consistent statements are
    presumptively inadmissible because they lack probative value and constitute
    hearsay when adduced for the truth of their contents. They are potentially
    dangerous because they may mislead the trier of fact into thinking that, because
    a person said the same thing on more than one occasion, it is more likely to be
    true. See
R. v. Dinardo
, 2008 SCC
    24, [2008] 1 S.C.R. 788, at paras.
36-37;
R. v. Divitaris
(2004), 188 C.C.C. (3d) 390 (Ont. C.A.),
    at para.
28.

[11]

Where prior consistent statements are
    admitted to rebut recent fabrication or defence allegations of inconsistency,
    or as narrative, a warning against substantive use of the statements is usually
    required. This instruction should indicate that the prior complaints are not
    admitted for the truth of their contents and that the jury is to consider only
    the fact that the complainants were made to assist them in understanding what
    occurred and why:
Dinardo
, at para.
    37;
R. v. B. (C.)
, 2008 ONCA 486, 237
    O.A.C. 387, at para. 48;
R. v. F. (J.E.)
(1993),
85 C.C.C. (3d) 457 (Ont. C.A.)
, at p. 476.

[12]

There are some exceptions to the
    general rule. A limiting instruction is not always necessary and may be
    confusing where "the defence was relying on the prior statement to support its
    theory," "where it was clear to the jury that the prior statement was not
    offered as proof of the underlying facts, or where the concern about
    self-corroboration is simply not present":
R. v.

Demetrius
(2003),
    179 C.C.C. (3d) 26 (Ont. C.A.), at paras. 21-22 [citations omitted].

Whether a limiting instruction was necessary in this case

[13]

The complainant's prior statements
    played a major role at trial. They went to the core question of the reliability
    and credibility of the complainant's evidence.  As a result, a limiting
    instruction was necessary to avoid the real risk that the jury would rely on
    the complainant's prior statements for an impermissible purpose.  Its omission
    was an error of law.

[14]

There were major inconsistencies in the
    complainant's various versions of relevant events that were contained in her
    statements to her grandmother and police, and in her testimony at the preliminary
    inquiry and at trial. In particular, between the complainant's first disclosure
    at age 11 to her grandmother and the police, and her evidence at trial, the
    nature and severity of the alleged assaults dramatically lessened from allegations
    of the appellant's attempted intercourse with the complainant to his touching her
    over her clothes. Further, the complainant's statement that "they" (meaning the
    appellant and his friend, James) touched her narrowed to her trial evidence
    that only the appellant touched her.

[15]

The complainant's prior inconsistent
    statements were introduced by defence counsel during her cross-examination of
    the complainant in order to impeach her credibility and reliability as a
    witness. Defence counsel challenged the complainant's credibility and
    reliability by comprehensively cross-examining her on the inconsistencies in
    her statements. The complainant was not asked to and did not adopt as true her
    prior statements. Rather, she acknowledged that they were incorrect. In her
    closing submissions to the jury, defence counsel described the complainant's
    inconsistencies in considerable detail.

[16]

During his re-examination of the
    complainant, his examination in chief of her grandmother, and in closing
    argument, Crown counsel sought to counteract the damaging effects of the
    complainant's cross-examination by referring to her prior consistent complaints.
    Crown counsel referenced the complainant's prior consistent statements of her
    complaint as part of the narrative and logical framework of her disclosure of
    the allegations of sexual abuse. In this way, Crown counsel asserted the
    consistency of the complainant's core evidence about the assaults, and
    contended that her prior inconsistent statements were not inconsistent on
    material matters.

[17]

Relying heavily on
Demetrius
, the Crown argues that a limiting jury instruction was not
    necessary in this case. Defence counsel introduced and relied on the
    complainant's prior inconsistent statements during the complainant's
    cross-examination and in closing submissions to the jury. That defence strategy
    opened the door to the Crown's referring to the complainant's prior consistent
    statements.  In those circumstances, a limiting instruction would have confused
    the jury.

[18]

I do not accept these submissions.

[19]

Demetrius
is distinguishable
    from the present case. The complainant made a statement that identified Mr.
    Demetrius as the person who shot him. As part of his defence, Mr. Demetrius
    relied on the contents of the complainant's prior consistent statement, in
    order to show that the complainant had come up with a quick lie. The complainant's
    prior consistent statement was essential to the defence theory of the case that
    he was falsely implicating Mr. Demetrius to exculpate himself from liability
    for a robbery. The defence strategy made the truth of the complainant's prior
    consistent statement relevant and the Crown was entitled to rely on it for that
    purpose.

[20]

That is not the present case. Here, defence
    counsel only referenced the complainant's prior statements for the permissible
    goal of impeaching the complainant's credibility and reliability because of the
    inconsistencies in her various statements and her evidence at trial, and not
    for the truth of the statements' contents.

[21]

The present case is akin to the
    circumstances of
R. v. Lajoie
(1993),
64 O.A.C. 213, leave to appeal refused, [1993] S.C.C.A. No. 188
. In that case, the trial judge had allowed the Crown to
    admit evidence of the complainant's prior complaint of sexual assault. The prior
    complaint was admitted, not as a prior consistent statement to rebut an allegation
    of recent fabrication, but as evidence of the fact that the complainant had
    complained. This use was necessary to counter the defence, which was an "all-out
    attack on credibility": para. 11.

[22]

This court held in
Lajoie
, at para. 12, that the trial judge erred in failing to
    instruct the jury as to the limited evidentiary value of the complainant's
    prior complaint, notwithstanding that no such instruction was requested, for
    the following reasons:

[L]eft as it was the jury may well
    have used the evidence for the very purpose they were not to use it, a form of
    self-corroboration. The jury should have been told that the evidence could not
    be used as proof of the truth of the facts stated, but was evidence of the fact
    that she had complained and so, depending on the view the jury took of that
    evidence, conduct consistent with her story. There was non-direction amounting
    to misdirection.

[23]

Those reasons apply equally to the
    present case.  Looking at the charge as a whole and considering it in the
    context of the closing submissions, there were unresolved gaps that gave rise
    to the risk that the jury would use the complainant's prior statements for the
    truth of their contents to bolster the complainant's credibility.

[24]

The Crown maintains that the failure of
    defence counsel to object to the charge indicates that the omission of the
    instruction was insignificant and could not have affected the outcome of the
    trial.

[25]

The failure of trial counsel to object
    to the charge is a factor in appellate review, for the following reasons as
    explained by Bastarache J. for the majority of the court in
Daley
, at para. 58:

While not decisive, failure of
    counsel to object is a factor in appellate review. The failure to register a
    complaint about the aspect of the charge that later becomes the ground for the
    appeal may be indicative of the seriousness of the alleged violation. See
Jacquard
, at para. 38:  "In my opinion, defence counsel's failure
    to object to the charge says something about both the overall accuracy of the
    jury instructions and the seriousness of the alleged misdirection."

[26]

However, counsel's failure to object is
    not determinative because the trial judge is ultimately responsible for the
    charge to the jury. If, as in the present case, the charge contains legal
    error, counsel's failure to object to the erroneous charge does not change the
    nature or effect of the legal error:
R. v. Polimac
, 2010 ONCA 346,
254 C.C.C. (3d)
    359,
at para. 97, leave to appeal refused,
    [2010] S.C.C.A. No. 263.  As a result, defence counsel's failure to object in
    the case at bar was immaterial in light of the legal error in the jury charge.

[27]

The failure of the trial judge in this
    case to give a limiting instruction left the jury without the analytical
    framework necessary to understand how they were to use the complainant's prior
    consistent statements. In particular, without this instruction, Crown counsel's
    reference to the complainant's prior consistent statements in his closing
    submissions was effectively the last word on the subject.

[28]

In his closing submissions, Crown
    counsel referred to the complainant's consistency in reporting her allegations
    over the years. This was done to counter the defence suggestion that the
    complainant's evidence was inconsistent and therefore incredible and
    unreliable. To make the point, Crown counsel emphasized the number of times
    that the complainant had "the guts" to repeat her version of events to her
    grandmother and to the police, at the preliminary inquiry, and at trial. In
    particular, Crown counsel highlighted the complainant's consistent repetition
    that "every time it's Geoff and James and those two girls and the details  [
s]
he testified that it
    happened on the couch and on the floor, repeatedly, her privates being rubbed
    by Geoff".

[29]

However, without a limiting instruction,
    the jury could easily have misunderstood the significance of the complainant's
    prior consistent complaints, namely, that the complainant's repetition of
    events meant that her statements were true. This would contradict the premise
    for the rule that excludes prior consistent statements - that repetition does
    not make the statement more likely to be true:
Divitaris
, at para. 34.

[30]

The lack of a limiting instruction was particularly
    harmful in the present case because the complainant's prior statements served
    to shore up the complainant's trial evidence about the assaults that was
    otherwise questionable.

[31]

The complainant testified that the
    appellant molested her when she was sitting on the couch or on the floor, with
    her legs out straight and slightly parted.  When she was sitting on the couch,
    she said that her feet would not be over the side of the couch or touch the
    floor, although her back was not up against the couch.

[32]

The complainant said that when she was
    sitting on the couch or on the floor, the appellant would crouch down, his
    knees bent, his bottom not touching the floor, and his face level with hers. From
    that position, the appellant would touch the complainant's private parts with
    what she thought were the appellant's private parts. The complainant did not
    see the appellant's penis; she did not even look at the appellant, because she
    said that she was watching her sister being molested by the appellant's friend,
    James.

[33]

The complainant confirmed that the
    appellant did not otherwise touch her.  When defence counsel questioned her about
    her prior inconsistent statement to her grandmother about the appellant
    touching the complainant's bottom, the complainant clarified that if she had
    said it to her grandmother, she would have meant that she was being spanked and
    that there was nothing sexual about it.

[34]

As defence counsel submitted to the
    jury in her closing address, the complainant's trial version of the assaults
    was almost physically impossible.

[35]

Without a limiting instruction, there
    was a real risk that the jury assessment would use the complainant's prior
    consistent statements as evidence of the sexual contact, that is to say, for
    their truth.

[36]

In the circumstances of this case, the
    absence of a limiting instruction in the jury charge was an error of law.

Disposition

[37]

Accordingly, the appeal is allowed, the
    appellant's conviction and sentence are set aside, and a new trial is ordered.

Released: February 5, 2016

"L.B. Roberts J.A."

"I agree John Laskin J.A."

"I agree G. Pardu J.A."


