



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Anderson, 2018 ONCA 1002

DATE: 20181207

DOCKET: C63297

Sharpe, Hourigan and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Norwayne Anderson

Appellant

Jennifer Penman and Renee Gregor, for the appellant

Amy Alyea, for the respondent

Heard: November 21, 2018

On appeal from the conviction entered on May 27, 2016 by
    Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

(1)

Introduction and background

[1]

The appellant was charged with five counts of sexual assault under s.
    271 of the
Criminal Code
, and one count of sexual exploitation under s.
    153. The jury was unable to reach a verdict on one sexual assault count. The
    appellant was found guilty on the remaining five counts.

[2]

The appellant worked in the modeling industry as an agent. The charges
    arose from his interactions with three male models  J.K., M.K. and J.O.

[3]

The appellant met J.K. (age 16) in 1998. He approached J.K. on the
    subway and asked him if he wanted to model. J.K. attended at the appellants
    home office for a photo shoot. The appellant pulled on the waistband of J.K.s
    underwear to see if he had shaved his pubic hair, as requested for the shoot.
    The incident lasted for five seconds. This was the basis for the conviction on count
    1 (sexual assault).

[4]

The appellant met M.K. (J.K.s younger brother; age 16) in 2000 at
    J.K.s fashion show. The appellant told him that he could be a model. At the
    first photoshoot, the appellant stroked M.K.s penis. This evidence resulted in
    convictions on counts 2 (sexual assault) and 3 (sexual exploitation).

[5]

The appellant met J.O. (age 24) in 2009. During a photo shoot, the
    appellant grabbed J.O.s penis over his underwear and adjusted it (count 4). On
    another occasion, the appellant rubbed J.O.s penis for about 5 minutes (count
    5). Lastly, J.O. stayed at the appellants apartment after a night out. J.O.
    was very intoxicated. He woke to find the appellant standing over him, trying
    to take his pants off. The jury could not reach a verdict on this count (count
    6).

[6]

These incidents were not reported to the police until 2013, even though
    J.K., M.K., and J.O. maintained professional and personal relationships with
    the appellant for many years after the events.

[7]

The appellant testified and denied all of the allegations.

(2)

Grounds of appeal

(a)

Failure to grant severance

[8]

The appellant applied to have the J.O. charges severed from the
    J.K./M.K. charges. There was no similar fact evidence application as it related
    to the evidence of J.K. and M.K. on one hand, and J.O. on the other. The
    appellant argued that the two groups of counts lacked a factual and legal nexus
    and risked cross-pollination and tainting of the evidence. The application
    was dismissed.

[9]

Section 591(3)(a) of the
Criminal Code
grants trial judges a
    broad discretion to sever counts in the interests of justice. The decision attracts
    considerable deference. Appellate interference is only warranted when the
    decision is unjudicial or resulted in an injustice:
R. v. Litchfield
,
    [1993] 4 S.C.R. 333, at pp. 353-354; and
R. v. Last
, 2009 SCC 45,
    [2009] 3 S.C.R. 146, at paras. 14-18.

[10]

As
    this court held in
R. v. A.C.
, 2018 ONCA 333, at para. 24: The
    interests of justice often call for a joint trial as severance has the
    potential to impair both trial efficiency and the truth-seeking function of the
    trial. See also
Last
, at para. 17; and
R. v. Sciascia
, 2017
    SCC 57, [2017] 2 S.C.R. 539, at para. 33. The trial judges ruling on severance
    addresses both concerns, as well as the factors identified by Deschamps J. in
Last
,
    at para. 18:

The factors identified by the courts are not exhaustive. They
    simply help capture how the interests of justice may be served in a particular
    case, avoiding an injustice. Factors courts rightly use include: the general
    prejudice to the accused; the legal and factual nexus between the counts; the
    complexity of the evidence; whether the accused intends to testify on one count
    but not another; the possibility of inconsistent verdicts; the desire to avoid
    a multiplicity of proceedings; the use of similar fact evidence at trial; the
    length of the trial having regard to the evidence to be called; the potential
    prejudice to the accused with respect to the right to be tried within a
    reasonable time; and the existence of antagonistic defences as between co
‑
accused persons.

[11]

The
    trial judge referred to this passage and applied the factors germane to this
    case. She found a factual and legal nexus because, [a]ll of the allegations
    involve allegedly unwanted sexual touching by the accused of the complaints
    [sic] in the context of his role as their modeling agent and in the situation
    of his performing photo shoots of the three complainants. The trial judge was
    not persuaded that the age differences between the K. brothers and J.O.
    undermined the factual nexus. She acknowledged that the timing of the various offences
    was a factor that favoured severance; however, she held, the way these
    offences make their way to police is explained by having the six counts tried
    together. The trial judge concluded that any danger of cross-pollination or
    propensity reasoning could be addressed with cautionary jury instructions.

[12]

The
    trial judges ruling reflects no error. This ground of appeal is dismissed.

(b)

Failure to declare a mistrial

[13]

The
    appellant argues that the trial judge erred in failing to grant a mistrial in
    response to a portion of M.K.s testimony. During cross-examination, M.K. said
    that he had heard from someone at the agency that the appellant had done the
    same thing (i.e., sexual assault) to someone else. This happened late on a
    Friday. Submissions on the issue were made on Monday morning. Defence counsel requested
    a mistrial due to the delay between the testimony and any curative instruction
    that might be given. The trial judge refused to declare a mistrial. After vetting
    her curative instruction with counsel, to which no objection was taken, she warned
    the jury that the evidence was double hearsay and irrelevant. This was at 11:11
    a.m. on Monday morning.

[14]

The
    appellant argues that he was prejudiced by this evidence and that the
    instruction was an insufficient response. He submits that M.K.s testimony was barred
    by a pre-trial ruling preventing the Crown from adducing this type of evidence.

[15]

The
    trial judge did not err in refusing to declare a mistrial. A mistrial is a
    discretionary remedy of last resort. Embedded in the throes of a trial, the
    trial judge is ideally situated to make this assessment. This is another
    instance in which a trial judges exercise of discretion is entitled to deference
    on appeal:
R. v. Khan
, [2001] 3 S.C.R. 823, at para. 36; and
R. v.
    Jeanvenne
, 2010 ONCA 706, at para. 58.

[16]

We
    acknowledge that in her earlier ruling, the trial judge spoke of this type of inadmissible
    evidence in more ominous terms, holding that any prejudice could not be cured by
    an instruction. Nevertheless, the prejudice created by this single piece of
    evidence did not warrant a mistrial. The trial judge acted swiftly when asked
    to do so by defence counsel. She cannot be faulted for failing to act earlier.

[17]

This
    ground of appeal is dismissed.

(c)

The directed verdict application

[18]

The
    appellant argues that the trial judge erred in dismissing his directed verdict application
    on count 1 (sexual assault  J.K.) and count 3 (sexual exploitation  M.K.).

[19]

A
    trial judges directed verdict decision is a question of law which does not
    command appellate deference:
R. v. Barros
, 2011 SCC 51, [2011] 3
    S.C.R. 368, at para. 48. Here, the trial judges conclusions were correct.

[20]

On
    count 1, there was evidence upon which the jury could find that, irrespective
    of whether the appellant was motivated by a sexual purpose, the touching was,
    objectively speaking, sexual in nature. It was conduct capable of violating J.K.s
    sexual integrity:
R. v. Chase
, [1987] 2 S.C.R. 293, at p. 302.

[21]

The
    appellants application for a directed verdict on count 3 was focused on a single
    element of the offence  whether the appellant stood in a position of trust or
    authority towards M.K. The appellants position at trial was that there was no
    professional relationship between the appellant and M.K. at that point in time.
    They had just met. The only factor that pointed to a position of trust or
    authority was the age difference between them (the appellant being 30, M.K. 16).

[22]

The
    trial judge ruled that this element of s. 153 may be satisfied even in the
    absence of a formal legal relationship between an adult and a young person. The
    touching occurred when M.K. was hoping that the appellant would represent him. The
    trial judge concluded that this context, in addition to the age difference,
    provided some evidence sufficient to permit the matter to be left with the
    jury.

[23]

We
    agree with the trial judges analysis. This ground of appeal is dismissed.

(d)

Prior consistent statements

[24]

During
    their testimony, all three complainants made reference to having previously
    told others about being abused by the appellant
before
they went to the
    police in 2013.

[25]

There
    was discussion among the complainants and with third parties. J.K. and M.K.
    discussed their experiences, although in not much detail. M.K. and J.O. had a
    similar discussion after M.K. and J.K. had already reported the matter to the
    police, but before J.O. made a report. J.K. told several of his friends. M.K.
    told a number of people, including his girlfriend, his psychiatrist, and S.S.,
    a partner at the appellants modelling agency. J.O. shared his experience with
    an agent. With the exception of S.S., none of these other people testified at
    trial.

[26]

For
    the most part, the evidence concerning the prior statements involved little
    more than
who
the complainants told and
when
. The Crown at trial
    argued that these statements were admissible as evidence of narrative (in terms
    of how the case came to the attention of the police), and to rebut allegations
    of recent fabrication.

[27]

Counsel
    for the appellant submits that the trial judge misconstrued the recent
    fabrication exception and argues that her instructions to the jury were confusing
    and warrant a new trial.

(i)

Admissibility

[28]

Although
    the statements were presumptively inadmissible, they were receivable under a
    number of exceptions to the rule. They were admissible as part of the narrative
    to explain how the allegations came before the court: see
R. v. Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788, at para. 37;
R. v. M.(C.)
, 2014 ONCA
    611, at paras. 64 and 91; and
R. v. Khan
, 2017 ONCA 114, 136 O.R. (3d)
    520, at paras. 25-40.

[29]

The
    statements were also admissible to explain the long delay in reporting, a
    significant theme at trial:
R. v. Bradford
(2002), 4 C.R. (6th) 150
    (Ont. C.A.), at para. 21.

[30]

Lastly,
    some of the statements were admissible to rebut allegations of recent
    fabrication: see
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at
    para. 5. As the Supreme Court held in
R. v. Ellard
, 2009 SCC 27,
    [2009] 2 S.C.R. 19, at para. 33, fabrication may include being influenced by
    outside sources. In this case, the defence alleged that the charges were the
    product of tainting and collusion between the three complainants.

[31]

There
    were other aspects to the recent fabrication allegations. With J.O., the
    purported motive was a financial dispute that had arisen with the appellant in
    2011 to 2012. In relation to J.K. and M.K., it was alleged that they fabricated
    their allegations to support each other. Defence counsel suggested to M.K. that
    he was angry with J.K. because he had taken things too far by going to the
    police by himself and discussing the appellants actions with both brothers. M.K.
    denied the suggestion that he had to go along with his brothers story to avoid
    being labeled a liar in the modeling community. As defence counsel said in her
    closing address:

Perhaps J.O. is making these allegations because Norwayne owed
    him money. Perhaps J.K. is supporting his brother. Maybe M.K. is bitter about
    the end of his career. Maybe its forother reasons altogether, it doesnt
    matter.

(ii)

The trial judges instructions

[32]

As
    the Crown acknowledges on appeal, the trial judges instructions could have
    been much clearer on the use of the prior consistent statements.

[33]

The
    trial judge instructed the jury three times on this issue. In her initial
    instructions, she reviewed the previous statements. She instructed the jury
    that prior consistent statements are generally inadmissible, but subject to
    exceptions, including recent fabrication. The trial judge provided the
    following cautions:

First, it is impermissible to assume that because a witness has
    made the same statement in the past, he is more likely to be telling the truth.
    Second you are not to use the prior consistent statementsfor the truth of
    their content.



You may only use the evidence of the prior consistent
    statements for two purposes. First, that it can be supportive of a particular
    allegation in the sense that it creates a logical framework for its
    presentation, or it explains how the allegation has come to court before you.
    Second, it can be used by you in assessing the truthfulness of the
    complainants, in this case [J.K., M.K., and J.O.]. It is used in this way to
    support their credibility but not for the truth of the statements content.

The trial judge did not explain how the statements
    might be used to rebut allegations of recent fabrication.

[34]

Defence
    counsel objected to this portion of the charge, arguing that the trial judge
    erroneously classified some of the complainants communications as prior
    consistent statements. She argued that a prior consistent statement must be
    proved independently, through the evidence of the recipient of the statement,
    not by the declarant himself. That is, an assertion by a complainant that he
    repeated the same story before is not a prior consistent statement. The Crown
    at trial (not Ms. Alyea) and the trial judge accepted this argument and the
    jury was re-charged accordingly. The trial judge told the jury that if the
    recipient of a prior statement did not testify, then that statement could not
    be used as a prior consistent statement. It was merely evidence of what a
    complainant told the recipient. The trial judge then repeated her warnings and
    instructions reproduced above.

[35]

The
    trial judges re-charge was incorrect on the issue of what qualifies as a prior
    consistent statement. Evidence that a complainant previously told someone about
    the event in issue may come from the declarant or from the recipient of the
    statement:
R. v. Campbell
(1977), 17 O.R. (2d) 673 (C.A.), at p. 685;
    and
R. v. Edgar
, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 28. The testimony
    of a complainant that he told others about the event is direct evidence of a
    prior statement. In David Watt,
Watts Manual of Criminal Evidence, 2018
(Toronto: Thomson Reuters Canada Limited, 2018), at §19.08, the author writes that
    the prohibition against the admission of prior consistent statements bars
    evidence of the statement from both the declarant and the recipient. Similarly,
    in Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst
,
The Law
    of Evidence in Canada
, 5th ed. (Toronto: LexisNexis Canada Inc., 2018),
    the authors state, at §7.1: A witness, whether a party or not, may not repeat
    his or her own previous statements concerning the matter before the court, and
    may not call other persons to testify to those statements.

[36]

Self-reported
    prior utterances of a witness trigger the same dangers typically associated
    with prior consistent statements  the risk of impermissible reasoning (e.g., he
    told the same story to different people, it must be true). The trial judge was
    led into error by taking numerous statements off the table as prior consistent
    statements. However, this error inured to the benefit of the appellant.

[37]

The
    trial judge was asked to correct her instructions on prior consistent
    statements again. Defence counsel complained that the trial judge had dictated
    to the jury what was a prior consistent statement and what was not. The trial
    judge told the jury that it was for them to decide. There were no further
    objections. Moreover, the jury asked no questions about this body of evidence.

[38]

Although
    the trial judges instructions on prior consistent statements were deficient, this
    does not automatically amount to reversible error. In
R. v. M.P.
, 2018
    ONCA 608, at para. 80, Watt J.A. wrote, The effect of a failure of a trial
    judge to properly apprise the jury about the limited use of prior consistent
    statements in reaching its verdict varies. Sometimes fatal. Other times, not.

[39]

Importantly,
    the jury was properly warned of the dangers associated with prior consistent
    statements. They were told twice that prior statements could not be used to
    enhance the likelihood that any of the complainants were telling the truth and
    they could not use any of the statements for the truth of their contents. The
    fact that none of the statements contained much in the way of incriminatory
    detail already minimized these dangers.

[40]

As
    noted above, the trial judge erroneously narrowed the potential reach of this
    evidence. Some of the evidence legitimately relied upon by the Crown was
    completely neutralized by the re-charge. Moreover, although the trial judge
    mentioned recent fabrication, she did not explain how the prior consistent
    statements might rebut these allegations. On the facts of this case, this omission
    benefitted the appellant.

[41]

In
    the end, the jury was adequately equipped to deal with this evidence. This
    ground of appeal is dismissed.

(e)

The Crowns closing address and the alternative motive

[42]

The
    appellant argues that the trial was unfair because, during her closing address,
    the Crown relied on the appellants sexual desire towards complainants as a
    motive to commit the offences. The appellant argues that the Crown had not
    previously alleged this motive. He claims that he was ambushed.

[43]

The
    appellants sexual desire was a live issue at trial. The appellant was not
    deprived of his opportunity to make full answer and defence. This ground must
    fail.

(3)

Disposition

[44]

The
    appeal is dismissed.

Robert Sharpe J.A.

C.W. Hourigan J.A.

Gary T. Trotter J.A.


