



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. S.H., 2020 ONCA 34

DATE: 20200121

DOCKET: C61333

Roberts, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.H.

Appellant

Adam Weisberg and Michelle Psutka, for the appellant

Kathleen Doherty, for the respondent

Heard: January 8, 2020

On appeal from the conviction entered on July 2, 2014 by
    Justice Peter A. Daley of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

S.H. and the complainant maintained a friendship after their live-in
    relationship ended in 2003. On November 1, 2008, the complainant attended the
    police station alleging that S.H. had sexually assaulted her after overpowering
    and choking her in her garage in the early morning hours. S.H. was ultimately
    charged with sexually assaulting the complainant and attempting to overcome
    resistance by choking her. He was also charged in connection with three other
    alleged, violent attacks on the complainant on other occasions: assault causing
    bodily harm in the early fall of 2003; assault with a weapon within an 18-month
    period ending on or about October 31, 2005; and another sexual assault in
    August of 2008. S.H. was convicted by a jury of both offences in connection
    with the November 1, 2008 incident. He was acquitted of the other charges.

[2]

S.H. appeals the convictions. S.H. argues that the trial judge erred in:
    (1) his jury instruction on the use of cross-count evidence; (2) in his
    treatment of a prior consistent statement; (3) denying S.H.s
Criminal Code
,
    s. 276 application to admit evidence of a prior sexual experience between S.H.
    and the complainant; and (4) failing to issue a corrective instruction in
    response to improper and inflammatory closing arguments from the Crown, which rendered
    the trial unfair.

[3]

The Crown disputes grounds of appeal two to four, but concedes that the
    trial judge committed the first error in saying to the jury,

if you conclude that the acts charged in one of the counts is
    or are similar to those charged in another, you may use the evidence on each
    count together with the rest of the evidence relating to that particular charge
    in reaching your verdict on any other charge.

[4]

The Crown recognizes that: the trial Crown had not brought an application
    for cross-count admissibility; an admissibility application based on similarity
    could not have succeeded had it been brought; the trial judge failed to explain
    when evidence would be similar; and he gave no assistance to the jury on what
    permissible inferences they could draw.

[5]

The Crown argues, however, that these errors were not reversible errors
    since they are harmless errors occasioning no prejudice to S.H. within the
    meaning of s. 686(1)(b)(iii), therefore, permitting the application of the
    curative proviso. She contends that the jury would not have relied on the trial
    judges instructions because: the cross-count evidence was not similar; the
    jury acquitted S.H. of charges arising from the three alleged events prior to
    November 1, 2008; and the trial judge properly instructed the jury not to use
    propensity reasoning.

[6]

The Crown concedes that if we disagree and find any of these errors to
    be serious, the convictions cannot be saved using the other leg of the s.
    686(1)(b)(iii) curative proviso  the overwhelming evidence leg. Specifically,
    the Crown concedes that it cannot be said in this jury trial, which revolved
    around credibility, that the evidence of the charges was so overwhelming that
    no substantial wrong or miscarriage of justice occurred.

[7]

We do not find the errors to be harmless. There were similarities
    between other counts and the November 1, 2008 incident, including variously: S.H.s
    consumption of alcohol before the alleged assaults; the rejection of S.H. by
    the complainant prior to the alleged assaults; head-butting; choking; and a
    subsequent apology. It is impossible to know what use the jury may have made of
    such similarities.

[8]

The direction not to draw prohibited inferences does not answer this
    concern since this direction addresses only moral prejudice arising from
    general bad character, not reasoning prejudice arising from illogical reasoning.
    Nor can the acquittals on other counts give comfort, as the rule barring the
    use of acquitted discreditable conduct as similar fact evidence does not apply
    in multi-count indictments. Moreover, the jury was not instructed against using
    evidence from counts they were acquitting on in deciding other counts:
R.
    v. Arp
, [1998] 3 S.C.R. 339, at para. 79;
R. v. Mahalingan
, 2008
    SCC 63, [2008] 3 S.C.R. 316, at paras. 66-72. The Crown is therefore unable to
    satisfy us that these errors were harmless. They are reversible.

[9]

This is enough to dispose of the appeal, but since reversible error has
    occurred and a new trial is required, it is prudent to give direction relating
    to other matters raised during the appeal.

[10]

Before the complainants prior consistent statements to her brother can
    be used for anything other than for the narrative purpose of explaining how the
    charges got before the court, the Crown should identify the inferences it seeks
    and obtain a ruling permitting such inferences. The trial judge should also direct
    the jury as to the limited use that may be made of the evidence and caution the
    jury against the prohibited uses of prior consistent statements:
R. v. D.C.
,
    2019 ONCA 442, at para. 21. In doing so, it is not enough to direct the jury
    not to use the prior consistent statements as hearsay. It is also impermissible
    to use consistency between testimony and prior statements as proof of the truthfulness
    of testimony, or to treat a prior consistent statement made by a witness as
    corroborating that witness:
D.C.
, at paras. 19, 22.

[11]

Moreover, it is inadmissible for a trial Crown, without proving affirmatively
    that a complainant did not have motive to mislead, to argue in substance that
    the absence of a known motive to mislead adds to the weight of her testimony:
R. v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23. Where
    this occurs, the trial judge must direct the jury that this reasoning is not
    permissible:
R. v. M.B
.
,
2011 ONCA 76, 267 C.C.C. (3d) 72, at
    paras. 30-32. Reasoning in this way undermines the presumption of innocence by
    reversing the burden of proof and fails to recognize that motives to mislead can
    be hidden:
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 312, at paras. 16,
    44.

[12]

Finally, we should not be taken as agreeing with all of the trial
    judges reasoning relating to the
Criminal Code
, s. 276 analysis, but
    we would not have found error in the ultimate decision to rule the prior sexual
    experience evidence to be inadmissible based on the balancing analysis under s.
    276(2)(d).

[13]

The appeal is allowed, the convictions are set aside, and a new trial is
    ordered.

L.B. Roberts J.A.

David M. Paciocco J.A.

Harvison Young J.A.


