



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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)   REPEALED: S.C. 2014,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    identify the victim shall not be published in any document or broadcast or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. A.C., 2018 ONCA 333

DATE: 20180405

DOCKET: C60597

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.C.

Appellant

David M. Humphrey and Ian B. Kasper, for the appellant

Lisa Joyal, for the respondent

Heard: November 24, 2017

On appeal from
    the convictions entered on February 4, 2015 by Justice Timothy Ray of the
    Superior Court of Justice, sitting with a jury.

Hourigan J.A.:

[1]

Following a trial by jury, the appellant was convicted of several offences
    against his former common law wife, R.C., and her three daughters from her
    previous marriage. One sexual assault charge related to R.C. One charge of
    sexual assault and one of sexual exploitation concerned her daughter, N.L. Three
    simple assault charges related to N.L. and R.C.s other two daughters, K.L. and
    S.L.

[2]

The appellant appeals his convictions on five grounds. The first pertains
    to the trial judges refusal to grant his application for severance of the
    sexual assault charge involving R.C. The appellant also submits that the trial
    judge erred in his application of the collateral fact rule to curtail defence
    counsels cross-examination of certain Crown witnesses, and in his similar fact
    instruction to the jury.

[3]

The final two grounds concern the trial judges refusal to allow the
    appellant to sit at counsel table during the trial and his failure to correct
    alleged impropriety in the Crowns closing address. The appellant acknowledges
    that these two alleged errors are not sufficient on their own to warrant a new
    trial, but submits that the cumulative effect of these errors with the others
    resulted in an unfair trial.

[4]

For the reasons that follow, I would dismiss the appeal.

Facts

[5]

R.C. had three daughters with her ex-husband: N.L., S.L., and K.L. (the
    daughters). In 1998, the appellant moved into R.C.s home with her daughters,
    and in 1999, they had a child together, G. N.L testified that while she had mixed
    emotions about the appellant at the start, their relationship began fairly
    positive. S.L. and K.L. agreed that times were good in the beginning of the
    relationship. In 2002, the appellant won a Father of the Year award based on
    letters the family had sent to a local newspaper. The same year, the daughters
    decided to stop seeing their biological father.

[6]

R.C. used physical discipline against the daughters prior to the
    appellant moving in. Despite testifying to good times in the beginning of the
    appellants relationship with the family, the daughters said that soon after he
    moved in, the appellant began physically disciplining them. The daughters testified
    that the appellant would grab them, pin them against walls, pull their hair,
    slap them, and call them names. Sometimes, when the daughters used bad language
    or lied, the appellant and R.C. made them eat soap.

[7]

S.L., K.L., and R.C. testified that N.L. was the closest of the
    daughters to the appellant. They said she and the appellant spent a lot of time
    together, which made S.L. and K.L. jealous, and that the family used to make
    fun of N.L. for being obsessed with and having a crush on the appellant. However,
    that relationship deteriorated and N.L. testified that in her teen years, she
    felt like a pariah in the family. The daughters testified that N.L. began
    receiving the brunt of the physical discipline.

[8]

N.L. testified that around when she turned 16 years old, the appellant
    began touching her sexually on a regular basis. The incidents usually happened
    in the basement on a couch, when the rest of the family was home. They included
    digital penetration and incidents where the appellant licked her vagina, butt
    crack, and anus. N.L. said a handful of similar incidents happened in her
    bedroom, and once at a drive-in. None of the family members ever saw any of
    this alleged sexual abuse.

[9]

N.L. testified that in 2007, just after returning from a March break
    trip with her school, there was an incident where the appellant pinned her
    against a wall and R.C. slapped her so hard that she could not hear. Afterward,
    when N.L. got to school late, she began crying and was directed to speak with the
    school social worker, A.B. N.L. told A.B. about the incident and about the physical
    and emotional abuse in the home, but did not disclose any sexual abuse. N.L. said
    she was surprised to learn that K.L. had already told A.B. about the incident. K.L.
    confirmed that she spoke to A.B. about the incident.

[10]

The
    next month, after another argument with the appellant and R.C., N.L. decided to
    leave the family home. Shortly before doing so, she told K.L. that the
    appellant had been touching her inappropriately. K.L. did not repeat this to
    anyone at the time. When N.L. was packing to leave, the appellant pushed or
    kicked her down the stairs. K.L. was not home when this occurred, but S.L. and
    R.C. both saw this happen.

[11]

After
    N.L. left, the Childrens Aid Society (CAS) began an investigation. R.C.
    testified that the appellant told the family not to disclose any abuse. For
    their part, S.L. and K.L. said that they decided to lie to CAS out of fear that
    the family would be split up. No one disclosed any physical or sexual abuse to
    CAS.

[12]

Within
    a year after N.L. left, S.L. and R.C. learned that N.L. had disclosed her
    sexual abuse to K.L. R.C. confronted the appellant but he denied any
    wrongdoing. R.C. said she tried to contact N.L. but never heard back. In 2010, N.L.
    wrote to R.C. about the sexual abuse. R.C. again confronted the appellant, and in
    reply he asked her whether she thought he would do something like that. In
    2011, S.L. and K.L. threatened to leave the family home after another family
    argument. In late December 2011, R.C. terminated her relationship with the
    appellant, but he did not move out until March 2012. According to S.L., she and
    K.L. helped the appellant move out and spent Easter dinner with him a week or
    two later.

[13]

In
    April 2012, R.C. met N.L. for coffee. R.C. encouraged N.L. to report her
    allegations to the police. N.L. did so that same month. In the course of N.L.
    reporting her allegations, R.C. alleged for the first time that the appellant
    had sexually abused her as well. R.C. testified that in 2001, she and the
    appellant decided to attempt anal intercourse. The attempt was not pleasant for
    R.C., and she decided she did not want to do it again. R.C. said that on a
    later occasion, the appellant came into her bed while she was sleeping, pulled
    down her pyjama pants, and stimulated her anus with his tongue. She told the
    appellant that she did not feel like engaging in anal intercourse, but the
    appellant got on top of her and forced himself inside her anus anyway. R.C.
    said incidents of anal intercourse continued on a regular basis and she
    continued to say no. She eventually stopped saying no in 2005. After that
    point, R.C. and the appellant would engage in anal intercourse once or twice a
    year.

[14]

At
    the time when N.L. and R.C. made their reports to police, there was a joint
    custody agreement between R.C. and the appellant concerning their child, G.
    R.C. agreed that the charges laid against the appellant as a result of these reports
    figured prominently into her application for sole custody of G.

[15]

The
    appellant did not testify at trial. The defence position was that R.C.
    consented to the acts in question, and that the daughters allegations never happened.
    The defence argued that R.C. and her daughters had a mutual motive to fabricate
    the allegations in the hopes of increasing R.C.s chance of success on her
    application for full custody of G.

Issues

[16]

This
    appeal raises five issues:

1. Did the trial judge err in refusing to sever the count of
    sexual assault against R.C.?

2. Did the trial judge err in refusing to allow the appellant
    to sit at counsel table?

3. Did the trial judge err in his application of the collateral
    fact rule?

4. Did the trial judge err in his instructions to the jury on
    similar fact evidence?

5. Did the trial judge err in failing to provide a corrective
    instruction after the Crowns closing address?

Analysis

(1)

The severance application

[17]

Prior
    to trial, the appellant applied to have the sexual assault charge involving R.C.
    severed. Defence counsel emphasized the differences between R.C.s and the
    daughters allegations, and the potential for moral and reasoning prejudice.
    Defence counsel indicated that while one can never determine conclusively
    whether or not testimony will be forthcoming, the appellants intention was to
    testify only in relation to the R.C. charge. Defence counsel explained that the
    appellants defence to the R.C. charge would be one of consent, whereas on all
    other charges, it would be simply that the allegations were not true.

[18]

The
    trial judge applied the factors for severance in
R. v. Last
, 2009 SCC
    45, [2009] 3 S.C.R. 145, at paras. 17-18, and refused the application.
[1]
He held that the appellants testimonial intention was not objectively
    justifiable, as there was 
nothing to indicate the weight of the
    evidence concerning the children will be less persuasive such that the
    defendant would be unlikely to give evidence on those counts, but would
    concerning the other counts (para. 7).
There was a factual nexus across
    all the counts. The time periods overlapped. The counts all involved family
    members and
were alleged to have occurred in the family home. Multiplicity
    of proceedings was less of a concern, as R.C. would be the only witness who
    would have to testify twice should her count be severed.

[19]

In concluding that the appellant had not met his
    onus on the application, the trial judge held, at paragraph 11:

The balancing of the various factors suggests
    that the only live factor in this case is the danger of reasoning prejudice,
    and I am satisfied that an appropriate jury instruction would prevent prejudice
    to the defendant. On the other side of the balance is the presumption that all
    counts should be tried together in one trial. It is more efficient if R.[C.]
    were to give her evidence once, and that would include her evidence of the
    atmosphere and dynamics in the household throughout the period covered in the
    counts. Severance can impair not only efficiency but the truth seeking function
    of the trial.

[20]

He was satisfied that, [w]hile not minimizing the riskany reasoning
    prejudice could be adequately dealt with by appropriate jury instructions
    (para. 7).

[21]

The
    appellant acknowledges that an appellate court should only interfere with a
    trial judges severance ruling if the judge acted unreasonably or if the ruling
    resulted in an injustice. He submits that that high bar is met in this case, as
    the risk of moral and reasoning prejudice was very high, and the only factual
    nexus between R.C.s allegation and the other allegations were the time frame
    and the fact that the complainants were all family members. The appellant
    argues that severance was particularly appropriate in this case given that R.C.
    was the only witness to give evidence in relation to her allegation of sexual
    assault. The evidence on that charge was not so complex that there would be any
    difficulty in holding a brief separate trial.

[22]

The
    appellant also points out that the Crown was not seeking to bring an
    application for cross-count admissibility on the R.C. count. He relies on this
    courts decision in
R. v. Jeanvenne
,

2010 ONCA 706, 261
    C.C.C. (3d) 462, for the proposition that there is even less justification to
    refuse severance where no similar fact application is brought. The appellant
    disputes the notion that R.C.s entire evidence, including her sexual assault
    allegation, was necessary to enhance the truth-seeking function of the trial.
    Finally, he argues that his testimonial intention was objectively reasonable
    due to his differing defences in relation to the R.C. count and all the others.

[23]

I would not give effect to this ground of appeal.

[24]

Any
    appellate analysis of a trial judges severance ruling must start from a
    position of deference:
R. v. Riley
, 2017 ONCA 650, 351 C.C.C. (3d)
    223, at para. 138;
Last
, at para. 14. The burden is on the applicant
    to convince the trial judge that the interests of justice require severance
    under s. 591(3) of the
Criminal Code
:
R. v. Arp
, [1998] 3 S.C.R.
    339, at para. 52. 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:
Last
, at para. 17;
R. v.
    Sciascia
, 2017 SCC 57, 355 C.C.C. (3d) 553, at para. 33.

[25]

The
    trial judge properly identified the factors to consider on a severance
    application. The Supreme Court identified these factors in
Last
, at
    para. 18:

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.

[26]

In
    my view, it was open to the trial judge to conclude that the risk of moral and
    reasoning prejudice could be
dealt with by appropriate jury
    instructions in this case. His conclusion that there was a sufficient factual
    nexus across all counts was reasonable, given that all of the charges stemmed
    from the same police investigation, involved members of the same family,
and
    were alleged to have largely occurred under the same roof. The trial judge
    acknowledged that multiplicity of proceedings was not a large concern, but it
    was reasonable for him to conclude that
trial efficiency would be
    better served if R.C. were to give her evidence only once, and that this would
    enhance the truth-seeking function of the trial by giving the jury a full
    picture of the family dynamic.

[27]

This
    courts decision in
Jeanvenne
does not assist the appellant. In that
    case, this court held that the trial judge erred in refusing the accuseds
    application to sever two murder charges. In the course of his analysis, Blair
    J.A. reasoned that, [w]hen there is no similar fact evidence connecting the
    two crimes, there is even less justification for refusing to sever (para. 34).
    However, this was but one factor in Blair J.A.s analysis: see paras. 34-48. Notably,
    Blair J.A. relied on the fact that there was no factual or temporal nexus whatsoever
    between the murders. The same cannot be said in the appellants case.

[28]

I
    do, however, agree with the appellant that his stated intention to testify in
    relation to the R.C. count, but not the others, was objectively justifiable. On
    a severance application, the accused has the burden to provide information that
    satisfies the trial judge that 
objectively, there is substance
    to his testimonial intention. That information may include anticipated
    defences:
Last
, at para. 26. In holding that the
    appellants testimonial intention was objectively unreasonable, the trial judge
    reasoned, as it was open to him to do, that there was nothing to indicate that
    the evidence on the counts involving the daughters would be less persuasive. However,
    the trial judge should have also engaged with the potential defences.

[29]

I
    agree with the appellant that it would make sense for him to testify in
    relation to R.C.s allegation as his defence was one of consent, but not to
    testify in response to the other allegations, as his position was that they
    never occurred. However, even where objectively justifiable, the accuseds
    testimonial intention is
only one factor in the analysis and may
    not be a significant one:
Last
, at para. 30. It
    can be outweighed by factors that demonstrate that the interests of justice
    require a joint trial:
Last
, at para. 26. However,
    in the circumstances of this case, I am not persuaded that this factor was
    enough to tip the balance in favour of severance, given the countervailing
    factors that the trial judge identified.
[2]


(2)

Refusal to let the appellant sit at counsel table

[30]

After
    jury selection and prior to trial commencing, defence counsel requested that
    the appellant be allowed to sit at counsel table during his trial. The
    appellant was out of custody and did not present a security risk. The Crown
    took no position on the request.

[31]

Responding
    orally, the trial judge said that absent an exceptional reason, the accused
    should sit in the prisoners box whether in custody or not.

[32]

In
    his opening instructions, the trial judge cautioned the jury:

You should not draw any inference from the fact that [the
    accused] is sitting in the prisoners dock. Whether [the accused] is in custody
    or not, that is where a person accused of a crime sits during their trial.

[33]

The trial judge subsequently released written reasons on this
    issue.
[3]
In them he added, at paragraph 3:

To routinely permit an accused person to sit at the counsel
    table or in the body of the court where there are no security concerns has the
    serious potential of implying to the observer that those ordered to sit in the
    prisoner's dock are more likely guilty of something. Whereas if the general
    practice, as is the case in Ottawa, is for the defendant to sit in the
    prisoner's dock in serious cases then the likelihood of an improper or unfair
    inference is reduced. This is a serious case.

[34]

In
    his closing address, defence counsel reminded the jury of the presumption of
    innocence and said:

every day [the accused has] had to sit in this prisoners box,
    a place where its impossible, I respectfully submit, for anybody to sit and
    look innocent, it doesnt matter because its not about how anybody looks when
    theyre in a prisoner box.

[35]

The
    appellant submits that the trial judge wrongly relied on the seriousness of
    the case in ordering him to sit in the prisoners box, as this is irrelevant
    where there is no security concern. He argues that he was entitled to have this
    issue determined on its own merits, not on its implications for in-custody
    accused in future proceedings. While the trial judges instruction to the jury
    that an accused person sits in the box whether in custody or not was well
    intentioned, it could have had the negative effect of turning the jurors minds
    to whether the appellant was in custody. The appellant acknowledges that even
    if the trial judge erred in this ruling, the error does not on its own warrant
    a new trial. He submits that this error contributed to the overall unfairness
    of his trial.

[36]

I
    would not give effect to this ground of appeal.

[37]

Like
    a trial judges decision on a severance application, a trial judges ruling in
    relation to where an accused sits during his trial is discretionary, and this
    court should begin from a place of deference:
R. v. Lalande
(1999),

138 C.C.C. (3d) 441 (Ont. C.A.). While the default placement of an accused
    on trial is in the prisoners box, there is no presumption in this regard. In
    every case, the accuseds placement must permit him to make full answer and
    defence, but the issue is to be assessed on a case-by-case basis, having regard
    to the interests of a fair trial and courtroom security in the particular
    circumstances of the case:
Lalande
.

[38]

The
    trial judge erred in considering the seriousness of the offence as a relevant
    factor. In and of itself, the seriousness of the offence says nothing about
    security concerns or the interests of a fair trial. The trial judge also erred
    in considering the impact of his ruling on hypothetical in-custody accused in
    future proceedings. I agree with the appellant that he was entitled to have
    this issue determined on its own merits.

[39]

However,
    I need not determine whether the ruling would have been the same had the trial
    judge not considered these erroneous factors, as there is nothing to show that
    any prejudice flowed from the appellants placement in the prisoners box.  There
    is no basis to suggest that the appellants placement impaired his right to
    make full answer and defence.
[4]
The trial judge instructed the jury not to give his placement any weight. The
    jury can be trusted to have followed that instruction. Moreover, defence
    counsel addressed the appellants placement in his closing address and in so
    doing, emphasized the presumption of innocence.

(3)

The collateral fact ruling

[40]

On
    the Crowns theory of the case, the appellant controlled the family with
    aggression and abuse from the outset, and R.C. and her daughters lived in fear
    of him. Defence counsel sought to challenge this theory by questioning Crown
    witnesses about the appellants 2002 Father of the Year award. N.L. acknowledged
    that the appellant won the award based on letters the family wrote to a local
    newspaper, but denied personally participating in writing them. At the
    preliminary inquiry, however, both R.C. and S.L. had testified that N.L. participated.

[41]

After
    N.L. testified, the Crown submitted that the appellant had put his character in
    issue when defence counsel tendered evidence about the Father of the Year
    award. Defence counsel replied that the evidence was introduced not to
    establish the appellants good character but to undermine N.L.s credibility.
    After submissions, the trial judge provided the following mid-trial instruction:

You heard a series of questions and answers concerning [the
    accused] receiving an award. The answers that you heard [from] N.L., on the
    issue of whether or not she was involved in writing letters to nominate [the
    accused] for the award, may be used in assessing her credibility on that issue.
    The answers, however, cannot be used by you as evidence of [the accuseds] good
    character.
[5]

[42]

S.L.
    testified after N.L. Part way through S.L.s testimony, the Crown applied to
    prohibit defence counsel from asking the remaining Crown witnesses any questions
    about N.L.s involvement in writing the letters on the basis that it was a
    collateral issue. Defence counsel argued that the issue was not collateral for
    two reasons:

the questions we seek to ask of two Crown witnesses is [sic]
    not collateral for a number of reasons. First, it does go to credibility if
    the jury hears, [R.C.], for example, say, no, it was [N.L.] and her sisters
    that were writing these applications and faxing them in, the jury could accept
    that and that could be a significant blow to [N.L.]s credibility. That would
    be one basis upon which the questions would be admissible, in our respectful
    submission.

More importantly, we suggest that it relates to an accurate
    account of the narrative because weve heard about a household that may have
    been punctuated with physical discipline and yelling, but it may not have
    always been that way. That also ties into what one of our positions is, and
    thats, respectfully, that these allegations are a fabrication So were just
    attempting to call evidence that sets out the narrative as we feel is an
    accurate reflection of how things transpired.

[43]

The
    trial judge prohibited defence counsel from asking any further questions about
    N.L.s involvement in writing the letters. He noted that defence counsel did
    not ask N.L.
why
she did not participate, so it was not established
    that she did not do so because her relationship with the appellant and the
    family dynamic were poor. He rejected defence counsels argument that
    contradicting N.L. on this issue would correct the narrative. While he accepted
    that the questions may go to N.L.s credibility, the collateral fact rule
    operated to prevent questions that went solely to that issue. The trial judge
    was not concerned about wasting time, but was worried about confusing the jury
    about the issues, particularly given his mid-trial instruction about the
    Father of the Year award evidence:

Both counsel were of the view that I should give a mid-trial
    instruction concerning the award and that it was not to be considered as going
    to the accuseds good character. To persist in questioning other witnesses in
    cross-examination may well have the effect of undermining my instruction for
    what would be, at best, a contradiction of the complainant on what is clearly
    not an issue in this case.

[44]

The
    trial judge acknowledged that
R. v. Seaboyer
, [1991] 2 S.C.R. 577,
    dictates that defence evidence should be restricted with caution, but held that
    his ruling did absolutely no such thing.

[45]

The
    appellant submits that defence counsels proposed questions about N.L.s
    participation in writing the Father of the Year letters went to the heart of
    the Crowns case: what was the nature of the relationships in the house at that
    time (up until 2002)? In addition to going to N.L.s credibility, had the
    defence elicited evidence through S.L. and R.C. that N.L. did participate, it
    would be open to the jury to infer that she did so because she believed the
    appellant was a great father and that the home atmosphere was not as bad as she
    made it seem. The appellant argues that defence counsel was not seeking to call
    extrinsic evidence, but merely to ask a few questions of witnesses whom the
    Crown was already calling. Thus, concerns about distracting the jury or taking
    up too much time did not arise. Further, the trial judges concern that defence
    counsel did not ask N.L.
why
she did not write the letters was
    misplaced, as defence counsel rejected the premise that she did not do so. The
    appellant submits that prohibiting the defence from this line of questioning was
    a serious error resulting in serious prejudice, particularly given that courts
    must exercise restraint in restricting evidence that could assist the defence.

[46]

I
    am of the view that the parties and trial judge below, and consequently the
    parties on appeal, have operated on a misunderstanding of what the collateral
    fact rule actually prohibits. This is unsurprising, given that
the rule has historically suffered from confusion in
    its application.
The rule operates to prevent a party from calling
    extrinsic contradictory evidence to undermine the credibility of an opposing
    partys witness in relation to a collateral issue. It does not operate to
    confine the scope of what is otherwise proper cross-examination:
R. v.
    MacIsaac
, 2017 ONCA 172, 347 C.C.C. (3d) 37, at para. 58;
R. v.
    Sanderson
, 2017 ONCA 470, 349 C.C.C. (3d)
    129, at para. 46, citing
R. v. G.P.
(1996), 31 O.R. (3d) 504 (C.A.);
R. v. Khanna
, 2016 ONCA 39, 127 W.C.B. (2d) 613, at para. 9;
Landmark
    Vehicle Leasing Corporation v. Mister Twister Inc.
, 2015 ONCA 545, 257 A.C.W.S. (3d) 224, at paras. 20-21. The rule is
    based in trial efficiency and seeks to avoid confusing the jury and eating up
    too much time with the sub-litigation of non-essential issues: David M. Paciocco
    & Lee Stuesser,
The Law of Evidence
, 7th ed. (Toronto: Irwin Law Inc., 2015), at p. 476.

[47]

In
    this case, the Crowns application to prevent defence counsel from asking the
    remaining Crown witnesses about N.L.s participation in the letter-writing on
    the basis of the collateral fact rule was at least premature. Defence counsel
    indicated that they were not seeking to call independent evidence to contradict
    N.L., but to simply ask S.L. and R.C. about this subject in cross-examination.
    Had S.L. and R.C. testified as anticipated that N.L. did participate, that
    presumably would have been the end of it. Had they testified that N.L. did not
    participate, defence counsel would have been entitled to impeach them on the
    basis of their preliminary inquiry testimony in the normal course of
    cross-examination. The collateral fact rule would only have arisen had the
    defence sought to introduce independent extrinsic evidence to contradict N.L.s
    assertion that she did not participate. For example, if the defence sought to call
    the newspaper reporter who wrote the Father of the Year article, the defence
    may well have been properly prohibited from doing so under the collateral fact
    rule.

[48]

Given
    the above, the Crown could only have applied for a ruling at the time that it
    did on that basis that the scope of defence counsels cross-examination of the
    remaining Crown witnesses should be curtailed in relation to N.L.s
    participation in writing the letters. Cross-examination is fundamental to a
    fair trial and counsel on both sides are to be afforded wide latitude to test a
    witness credibility, even in relation to collateral matters:
R. v. R.
    (D.),
[1996] 2 S.C.R. 291, at p. 305;
R. v. Duong
, 2007 ONCA 68, 84 O.R. (3d) 515, at para. 22;
R. v S.B.
, 2016 NLCA 20, 377 Nfld. & P.E.I.R. 84, at para. 37, reversed on
    different grounds: 2017 SCC 16, [2017] 1 S.C.R. 248
. There is no reason
    for this to be any different when counsel seeks to test one opposing witness
    credibility by eliciting contradictory evidence in the cross-examination of a
    different opposing witness. However, the right to cross-examination is not
    without limits:
R. v. Lyttle
, 2004 SCC 5, [2004] 1
    S.C.R. 193, at paras. 44-45, 50. Cross-examination may be limited, for example,
    where the proposed line of questioning is abusive or has little to no relevance
    or probative value:
Lyttle
, at para. 44;
R.
    v. Mitchell
, 2008 ONCA 757, 80 W.C.B. (2d) 796, at paras. 7,
    18-19. When considering the scope of defence counsels cross-examination, the
    prejudicial effect of the line of questioning must substantially outweigh the
    probative value before it can properly be curtailed:
Seaboyer
,
at 611.

[49]

I
    do not see anything on this record that called for defence counsels
    cross-examination to be curtailed so as to prevent the defence from asking the
    remaining Crown witnesses about N.L.s participation in writing the letters. If
    S.L. and R.C. testified as anticipated, their testimony that N.L. helped write
    the letters had some probative value. Not only would it be relevant to N.L.s
    credibility on that specific issue, but it would be relevant to a central issue
    in the case: the nature of the relationships in the home from when the physical
    abuse allegedly began. While defence counsel did not ask N.L.
why
she
    did not participate in the letters, I accept the appellants submission that
    they were not obligated to do so given that they rejected the premise that she
    did not participate. Had S.L. and R.C. testified that N.L. did participate,
    defence counsel could have properly put to the jury that it was open to them to
    infer that things in the home in the earlier years were not as bad as N.L.
    alleged. While there may have been other available inferences for why N.L. did
    or did not participate, it was for the jury to determine what inferences to
    draw.

[50]

It
    is worth noting that even if the collateral fact rule did operate to limit the
    scope of otherwise proper cross-examination of opposing witnesses, the rule
    would not have prevented defence counsel from asking the remaining Crown
    witnesses about N.L.s participation in the letters. The collateral fact rule
    is generally understood to prevent contradictory evidence on issues that relate
solely
to a witness credibility on a collateral issue
[6]
:
    see
MacIsaac
, at para. 59;
Sanderson
,

at para. 46.
    In this case, the proposed questions went to more than simply N.L.s
    credibility. Evidence that N.L. had participated in the letters had the
    potential to debunk the picture painted by the Crown witnesses that the appellant
    ran an abusive household from the outset: see
Sanderson
, at paras. 48,
    52;
R. v. Prebtani
, 2008 ONCA 735, 240 C.C.C. (3d) 237, at paras.
    129-130. In this regard, this courts decision in
R. v. J.H.
, 2013
    ONCA 693, 110 W.C.B. (2d) 90, does not assist the Crown. In that case, the
    accused was charged with numerous offences including sexual assault and
    voyeurism against his ex-spouse. At trial, defence counsel sought to introduce
    evidence that the complainant had made or encouraged a false motor vehicle
    accident report on some other occasion (para. 3). This court held that that
    evidence fell within the collateral fact rule. Clearly, unrelated motor vehicle
    accident reports had nothing to do with the case beyond an attack on the
    complainants credibility at large.

[51]

Despite
    all of the above, I am of the view that the improper curtailing of defence
    counsels cross-examination of the remaining Crown witnesses did not preclude
    the defence from putting forward its theory that the household dynamic in the
    years leading up to the Father of the Year award in 2002 were not as bad as
    N.L.s allegations made it seem. In
Khanna
, this court held, at
    paragraph 11:

Finally, what occurred here was not preclusive of
    trial counsels right to cross-examine the complainant about her motives to
    fabricate her allegations. Cross-examination on the complainants motives was
    permitted and pursued, curtailed only in relation to internet postings and
    chats of negligible assistance in resolving any contested factual issues at
    trial.

[52]

Similarly
    in
R. v. McCallum
, 2010 BCCA 587, 93 W.C.B. (2d) 5, leave to appeal
    refused: [2011] S.C.C.A. No. 96, the British Columbia Court of Appeal held, at
    paragraph 13:

While evidence of the nature of the
    relationship between the complainant and the appellant, and of the
    complainants other physical altercations and her capacity to inflict harm, may
    have been relevant to defence counsels theory regarding the complainants
    credibility, I am convinced the trial judge had sufficient information before
    him regarding these issues such that he did not err in limiting further
    cross-examination.

[53]

Despite
    the impugned ruling, defence counsel effectively cross-examined N.L., as well
    as S.L., K.L., and R.C., on the nature of N.L.s relationship with the
    appellant in the earlier years, and on the general household dynamic when the
    appellant first moved in. For example, S.L., K.L., and R.C. all testified that
    N.L. was very close to the appellant in the beginning, so much so that the
    family thought N.L. had a crush on him. Defence counsel elicited through the
    sisters and R.C. that there were good times at the start, and that the
    appellant cared for the girls. And despite alleging that the physical abuse
    started at the outset of the appellants time with the family, N.L. herself testified
    that her relationship with the appellant started off fairly positive.

[54]

Defence
    counsel also cross-examined the daughters and R.C. extensively on the
    daughters decision to stop seeing their biological father in 2002. In his
    closing address, defence counsel put to the jury:

by 1998, [R.C.] is living with this man, this man who brings
    over groceries, who takes care of her daughters while shes at work, a man who
    ultimately the girls pick over their own father in 2002. It will be for you to
    determine whether or not the relationship that existed between these girls and
    this man was as awful as the Crown attorney would ask you to believe, but
    remember one thing, if it was so abusive, why in 2002 did they decide that they
    didnt want to see their biological father anymore? You heard them, that was
    their decision. So if [the accused] was beating them and washing their mouths
    out with soap, in 2002, they go to the family lawyer and they decide that they
    dont want to see their biological father anymore who doesnt beat them?

[55]

As
    in
Khanna
, further cross-examination specifically in relation to
    whether N.L. participated in the letters would have provided negligible
    additional assistance to the jury in determining whether the relationships in
    the house up until 2002 were as bad as N.L. purported them to be. Moreover, although
    defence counsel lost the chance to attempt to contradict N.L. on her
    participation in the letters, such a contradiction would also have provided
    negligible additional assistance to the jury in evaluating N.L.s credibility.
    The jury had before it evidence from the other Crown witnesses that undermined
    N.L.s account of her relationship with the appellant being poor from the
    start. Whether she was specifically contradicted on her participation in the
    letters was unlikely to add much to the jurys evaluation of her credibility.

[56]

I
    would reject this ground of appeal.

(4)

The similar fact instruction

[57]

At
    the end of the trial, the Crown successfully applied to treat the three counts
    of physical assault against the daughters (counts 4 to 6) as cross-count
    similar fact evidence. The Crown never brought a similar fact application in
    relation to the sexual offences (counts 1 to 3). During the pre-charge
    conference, defence counsel requested a clear instruction that the jury could
    not engage in a similar fact analysis on any counts other than counts 4 to 6.

[58]

The
    trial judge ultimately provided a general instruction about the Crowns burden
    to prove each count only on the evidence admissible on that count:

Each charge or count requires its own proof. The real issue for
    you to decide in this case is whether the offence alleged by each complainant
    ever actually took place. Be careful not to jump to the conclusion that if one
    complainant is telling the truth, the others must be telling the truth as well.
    Nor should you jump to the conclusion that because the complainants alleged
    similar conduct, they all must have occurred if anyone of them is proved. It is
    up to Crown counsel to prove each charge independently of the others.

[59]

The
    trial judge then specifically turned to the physical assault counts and
    instructed the jury on similar fact reasoning:

With respect to counts 4, 5 and 6, but not the other counts,
    you may, but do not have to find that there is a pattern of similar conduct
    that confirms each complainants testimony that the offence took place In
    deciding whether there is such a pattern and similar conduct, you should
    considerthe similarities and dissimilarities between the counts.

[60]

He
    then reviewed the similarities and dissimilarities between the daughters
    accounts of physical abuse. In doing so, he did not review any evidence related
    to the sexual offences. The trial judge concluded his similar fact instruction
    as follows:

If you conclude theres a pattern and a similar conduct between
    offences described in Counts 4, 5 and 6 with which [the accused] is charged,
    you may use the evidence of similar conduct on each charge together with the
    rest of the evidence relating to that particular charge in reaching your verdict
    on any other charge.



If you do not or are unable to conclude that the acts charged
    in Counts 4, 5 and 6 are so similar to those charged in each count that they
    show a pattern of similar conduct, you must not use the evidence on those
    charges in reaching your verdict on any other charge.

Whether or not you use the evidence of any complainant to help
    you decide whether any other complainant is telling the truth, you must not
    find [the accused] guilty of any offence unless Crown counsel has satisfied you
    beyond a reasonable doubt that the offence charged actually took place and that
    [the accused] committed it.

[61]

Defence
    counsel did not object to the charge after it was given to the jury.

[62]

The
    appellant does not dispute that the trial judge properly cautioned the jury
    against propensity reasoning. But, he submits, the charge was not clear enough
    that the jury could not engage in cross-count similar fact analysis on the
    sexual charges (counts 1 to 3). The jury had to be explicitly told that on
    counts 1 to 3, it could consider only the evidence admissible on each
    individual count. The appellant submits that this lack of clarity was
    compounded by the apparent misdirection when the trial judge said that the jury
    could use the evidence on counts 4 to 6, if they found the allegations were
    sufficiently similar, in reaching your verdict on
any other charge
.
    This erroneous specific instruction overtook the trial judges generalized
    instructions that each charge must be proven on its own admissible evidence.

[63]

It
    is a well-established principle that accused persons are entitled to a properly
    but not perfectly instructed jury:
R. v. Jacquard
,

[1997] 1
    S.C.R. 314. An appellate court must review a jury charge as a whole, and must
    not take a microscope to isolated passages:
R. v. Spence
, 2017 ONCA
    619, 353 C.C.C. (3d) 446, at para. 42. The review also takes into account other
    aspects of the trial. As Doherty J.A. stated in
R. v. Bouchard
, 2013
    ONCA 791, 305 C.C.C. (3d) 240, affirmed: 2014 SCC 64, [2014] 3 S.C.R. 283, 
[t]he question is not how the trial judge went about his or her task,
    but whether he or she achieved the purpose of the instruction (para. 35).

[64]

The
    appellant is correct that, in trials of multi-count indictments where there is
    a successful similar fact application that applies only to certain counts, the
    jury must be instructed that on those counts
not
part of the similar
    fact application, they cannot consider evidence on any other count in coming to
    a verdict:
R. v. J.R.M.
, 2015 ONCA 229, 121 W.C.B. (2d) 95, at paras.
    11-14;
R. v. Rarru
, [1996] 2 S.C.R. 165. However, reading the jury
    charge as a whole, I am of the view that the jury would have understood this.

[65]

When
    the trial judge instructed the jury on the permissible use of similar fact
    reasoning, he clearly stated that his instructions applied with respect to
    counts 4, 5 and 6,
but not the other counts
. In reviewing the
    similarities and dissimilarities between these counts, the trial judge reviewed
    only the daughters accounts of physical abuse and did not reference N.L.s or
    R.C.s sexual allegations. At no point did he take the jury through the
    similarities and dissimilarities between N.L.s and R.C.s sexual allegations
.

[66]

When viewed in isolation, the trial judges instruction that if the
    jury found a similar pattern between counts 4 to 6, they could use the evidence
    on those charges in reaching your verdict on any other charge is problematic.
    The Crown acknowledges as much, but submits, and I agree, that in the context
    of the charge as a whole, it is clear that the reference to any other charge
    refers only to counts 4 to 6.

[67]

I
    do not accept the appellants submission that the trial judges general
    instructions were not enough to overcome this isolated passage. The trial judge
    properly instructed the jury on more than one occasion that the Crown had to
    prove each charge on its own admissible evidence, and specifically instructed
    the jury to be careful not to jump to the conclusion that if one complainant
    is telling the truth, the others must be telling the truth as well.
    Additionally, the trial judge provided clear cautions against propensity
    reasoning. While it may have been preferable, a more explicit instruction that
    similar fact evidence was not permitted in relation to the sexual allegations
    was not necessary for the charge to serve its purpose: see
R. v. Dawson
,
    2016 ONCA 880, 343 C.C.C. (3d) 499, at para. 35.

[68]

Finally,
    while not determinative, the fact that defence counsel did not object to the
    charge after it was given to the jury is some indication that from the
    defences perspective, the jury was adequately instructed:
R. v. Marshall
,
    2017 ONCA 1013, 143 W.C.B. (2d) 528, at para. 34.

(5)

The Crowns closing address

[69]

As
    part of the Crowns disclosure, defence counsel was provided with a will-state
    for A.B., the school social worker. The will-state indicated that A.B. had met
    with N.L., but not with any of N.L.s sisters. In her opening address, the
    Crown touched on its anticipated evidence and told the jury that they may also
    hear from A.B.

[70]

Since
    the Crown never called A.B., the defence sought a ruling prior to closing
    addresses that an adverse inference be drawn against the Crown for failing to call
    her. The Crown objected. After lengthy submissions, the parties agreed that defence
    counsel could make the following comment to the jury:

The Crown decided not to call [A.B.], and so you did not hear
    her evidence about meetings, if at all, with [N.L.] or [K.L.]

[71]

In
    her closing address, Crown counsel stated:

You may hear from [the] defence about witnesses the Crown
    decided not to call, the school social worker, [A.B.] Would hearing from [A.B.]
    help you in deciding whether [the accused] physically abused his stepdaughters
    or sexually molested his older stepdaughter? Of course not. She did not live in
    that house.

[72]

Defence
    counsel objected to this wording, claiming that it went beyond the scope of the
    parties agreement. As a result, the trial judge allowed defence counsel to put
    to the jury the following inference in his closing address:

The Crown attorney mentioned [A.B.] in their opening address. I
    submit that she wasnt called because the evidence that she was going to give
    may not have been helpful

[73]

The
    appellant submits that the Crown went beyond the parties agreement concerning the
    Crowns failure to call A.B. and offered a wholesale comment on the helpfulness
    of what A.B. may have said. Had A.B. testified as anticipated, the
    inconsistency about whether she met with any of N.L.s sisters may well have
    gone to N.L.s and K.L.s credibility. Though A.B.s evidence was not the
    linchpin of the case, this was a case about credibility and the trial judge
    should have intervened. Like ground two, the appellant acknowledges that on its
    own, this alleged error does not warrant a new trial, but submits that it
    contributed to overall trial unfairness.

[74]

I
    would not give effect to this ground of appeal.

[75]

While
    Crown counsel was entitled in her closing address to provide an explanation for
    failing to call A.B., that explanation had to 
in ordinary logic
    and experience, furnish a plausible reason for nonproduction
:
R. v.
    Jolivet
, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 26. It was not open to
    the Crown to suggest to the jury that A.B.s testimony could never have helped them
    with the issues in the case. As with any trial, what a witness will testify to,
    while it can be anticipated, can never be known until the witness actually
    enters the box. A.B. may well have given evidence of some relevance to the
    case, despite never being inside the family home.

[76]

Nevertheless,
    the accused suffered no prejudice from the Crowns impugned comment. The trial
    judge permitted defence counsel in his closing to suggest to the jury that the
    Crown failed to call A.B. because her evidence may have been unhelpful to its
    case. In my view, that sufficiently dispelled any prejudice.

Disposition

[77]

While
    the trial judge made errors in the course of the trial, for the reasons given
    above, I am of the view that those errors were not material and did not result
    in an unfair trial. The appeal is dismissed.

Released: DW APR 5 2018

C.W. Hourigan J.A.

I agree. David Watt
    J.A.

I agree. B.W. Miller
    J.A.





[1]
The trial judges reasons on the severance application are reported at
2014 ONSC 1512,
112 W.C.B. (2d) 255,
    where he also dealt with two other pre-trial applications.



[2]
I wish to add in this regard that I do not agree with the Crowns submission
    that the trial judges ruling in relation to the appellants testimonial
    intention was reasonable particularly in light of the fact that defence counsel
    was equivocal in stating whether or not the appellant would testify. Defence
    counsel was candid in acknowledging that the ultimate decision about whether to
    testify depended on how the case was to unfold. Even where defence counsel
    unequivocally states the accuseds testimonial intention, the accused is not
    bound by that statement and remains free to control his defence,
as the case unfolds, in a manner he deems appropriate:
Last
, at
    para. 26. An accuseds stated testimonial intention should not be given diluted
    weight simply because his or her counsel acknowledges this right.



[3]
Reported at 2015 ONSC 413,
119 W.C.B. (2d) 220.



[4]
Before this court, the appellant refers to two comments from the jury during
    its deliberations to support his argument on this issue. The first comment
    indicated that a juror or jurors felt intimidated by the appellant as he was
    trying to stare them down. The other concerned the conduct of one of the
    defence counsel, which the jury characterized as aggressive (the trial judge
    rejected this characterization). The appellant argued that these comments
    demonstrated that the jury was clearly concerned with appearances. I am not of
    the view that these comments further the appellants position. The jury could
    have made the same comments had the appellant been seated at counsel table.



[5]
The trial judge provided a similar instruction in his final charge.



[6]
There is some debate about whether the rule should be relaxed to allow for an
    assessment of the probative value of contradictory evidence that goes solely to
    credibility, as credibility in and of itself may be an essential issue: see for
    example, Paciocco & Stuesser, at 475-480. I need not resolve that debate as
    it was not argued before us in this case, and even if this were a case where
    the collateral fact rule applied, the proposed questions went to more than
    simply N.L.s credibility.


