



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. McKenna, 2018 ONCA 1054

DATE: 20181220

DOCKET: C64081

MacPherson, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason McKenna

Appellant

Michael Johnston and Matthew Day, for the appellant

Luke Schwalm, for the respondent

Heard: September 4, 2018

On appeal from the
    convictions entered on December 22, 2016 by Justice Martin James of the
    Superior Court of Justice, sitting with a jury.

Nordheimer J.A.:

[1]

Mr. McKenna appeals his convictions on two counts of sexual assault following
    a five day jury trial. For the reasons that follow, I would allow the appeal
    and order a new trial.

A.

Background

[2]

The charges against the appellant arose from allegations by two female
    complainants that he sexually assaulted them when they were children. After his
    arrest on April 10, 2013, the appellant was released on bail with his then
    girlfriend as his surety. His conditions of release included a requirement that
    he reside at his girlfriends address in Calgary.

[3]

The matter proceeded to a preliminary inquiry in January 2014, which the
    appellant attended. At the conclusion of the preliminary inquiry, he was
    committed to stand trial on all counts.

[4]

Between February 2014 and July 2014, the matter proceeded through various
    appearances and pre-trial motions in the Superior Court of Justice in Pembroke,
    Ontario. The appellant was not present for any of these court appearances. The
    matter was eventually scheduled for a two-week trial commencing on May 25,
    2015. The appellant was notified by letter and by telephone about the trial
    dates and about his obligation to attend.

[5]

Between July 2014 and May 2015, the appellants relationship with his
    girlfriend ended. She terminated her suretyship, but the appellant did not
    voluntarily surrender himself into custody. During this same time period, the appellant
    ceased communicating with his trial counsel, who brought a successful motion to
    be removed as counsel of record in February 2015. The appellant was not present
    for this motion.

[6]

The appellant did not appear on the May 25, 2015 trial date. Consequently,
    the trial judge issued a warrant for his arrest. Three days later, an information
    was sworn charging the appellant with failing to attend court pursuant to s.
    145(2) of the
Criminal Code
.

[7]

In January 2016, the appellant was arrested by the Calgary Police
    Service in relation to unrelated charges in Alberta. The authorities in Ontario
    became aware of the arrest. In February 2016, an officer with the Ontario
    Provincial Police travelled to Calgary and brought the appellant back to
    Ontario. He remained in custody thereafter.

[8]

The appellants trial was re-scheduled. It proceeded from July 18 to 28,
    2016. The prosecution called the two complainants along with various other
    witnesses. The prosecution did not seek to put into evidence the failure of the
    appellant to attend on his first trial date. The appellant did not call any
    evidence. On the second day of jury deliberations, a mistrial was declared
    after the jury advised that they were unable to unanimously agree on a verdict.

[9]

On August 2, 2016, the appellant pleaded guilty to failing to appear for
    his original trial date.

[10]

Following
    the mistrial, a second jury trial was scheduled to begin on December 12, 2016. Pre-trial
    motions were set for October 31, 2016.

The pre-trial motion

[11]

As
    part of the pre-trial motions at the second trial, the prosecution sought
    permission to lead evidence about the appellants failure to attend for his original
    trial date. The prosecution contended that this evidence was admissible as
    consciousness of guilt evidence. The prosecutions evidence on the
voir
    dire
consisted of a written Application Record. The appellant sought to
    give evidence on the
voir dire
to establish, as his counsel advised
    the trial judge, that he failed to appear at his trial because of his surety
    revoking [and] just being in an emotional and financial dire straits.

[12]

The
    trial judge ruled that the appellant would not be permitted to testify on the
voir
    dire
. His stated rationale for this conclusion was as follows:

So that leads me to conclude that while the accused may well
    have an explanation to provide, that explanation ought to be presented to the finders
    of fact and to the jury.

I do not see any utility in having
    that evidence presented here in this forum today when it is my opinion that it
    ought to be heard by the jury.

[13]

The
voir dire
then proceeded with argument from counsel. On November 23, 2016,
    the trial judge ruled that the evidence of the appellants failure to attend
    his original trial date was admissible at trial. He began by holding that after-the-fact
    conduct is commonly admitted to show that an accused person has acted in a
    matter [
sic
] which, based on human experience and logic, is consistent
    with the conduct of a guilty person, and inconsistent with the conduct of an
    innocent person. The trial judge then concluded:

At bottom, whether a given instance of after the fact conduct
    has probative value with respect to an accuseds level of culpability depends
    entirely on the specific nature of the conduct, its relationship to their
    record as [a] whole and the issues raised at trial.

In the context we are dealing with
    here, I am of the view that it is a matter for the jury to decide. After
    hearing the evidence and the explanation, if any, of the accused, as well as a cautionary
    instruction from the trial judge.

[14]

The
    trial proceeded with the prosecution essentially calling the same evidence as
    it did in the first trial along with the evidence regarding the appellants
    failure to attend for his original trial date. That evidence came from two
    police officers and a Crown Attorney and consisted of the fact that the
    appellant:

·

had surrendered in April 2013,

·

was granted bail,

·

personally attended at his preliminary inquiry in January 2014,

·

was subject to a surety warrant as of August 2014,

·

failed to appear for his original trial date on May 25, 2015, and

·

was arrested in Calgary on a separate matter and transported back
    to Ontario pursuant to a bench warrant in February 2016.

[15]

At
    the conclusion of this portion of the evidence, the trial judge gave the jury a
    mid-trial instruction about after-the-fact conduct evidence. The mid-trial
    instruction was in the standard language contained in the specimen jury
    instructions. It concluded with the following:

As circumstantial evidence,
    evidence of after the fact conduct has only an indirect bearing on the issue of
    Mr. McKennas guilt. You must be careful about inferring that Mr. McKenna is
    guilty on the basis of evidence of after the fact conduct because there might
    be other explanations for that conduct, something unconnected with his participation
    in the offence charged. You may use this evidence of after the fact conduct
    along with other evidence to support an inference of guilt only if you had [
sic
]
    rejected any other explanation for this conduct.

[16]

As
    in the first trial, the appellant did not call any evidence. The trial judge
    charged the jury on December 22, 2016. In terms of the after-the-fact conduct
    evidence, the trial judge instructed the jury in virtually the same terms as he
    did when he gave the mid-trial instruction. However, he concluded his
    instruction this time by saying:

You may use this evidence of after
    the fact conduct, along with other evidence, to support an inference of guilt
    only if you have rejected any other explanation for this conduct. On the other
    hand, if you find that Mr. McKenna's failure to return to Ontario for his trial
    was related to the commission of the offences charged, not to something else,
    you may consider this evidence, together with all the other evidence in
    reaching your verdict.

[17]

After
    approximately two hours of deliberation, the jury convicted the appellant of both
    counts of sexual assault.

B.

Analysis

[18]

The
    only issue on this appeal is the trial judges handling of the post-offence
    conduct evidence. In my view, the trial judge made two fundamental errors in that
    regard. The first revolves around the trial judges decision to admit the
    evidence. The second has to do with how the trial judge instructed the jury on
    the use to which they could put this evidence, assuming it was properly
    admitted.

Admission of the evidence

[19]

On
    the first issue, before determining whether to allow the prosecution to lead
    this evidence, the trial judge had to conclude that the evidence was relevant
    to an issue that the jury had to decide. If the trial judge concluded that the
    evidence was relevant, then he also had to decide whether the probative value
    of the evidence was outweighed by its prejudicial effect.

[20]

It
    was critical, to a proper decision on whether the evidence of the missed trial
    date ought to be admitted, for the trial judge to know the circumstances
    surrounding the appellants failure to appear on that trial date. Central to
    those circumstances was the appellants explanation for his failure to appear. Yet
    the trial judge refused to allow the appellant to give evidence on the
voir
    dire
, the whole purpose of which was to decide the admissibility question.
    Without hearing the appellants explanation for his failure to attend, or at
    least a summary of the appellants explanation from counsel, I am unable to
    understand how the trial judge purported to conduct a proper relevancy analysis
    or to properly exercise his discretion whether to admit the evidence.

[21]

I
    appreciate that there is no rule regarding how a
voir dire
on the
    admissibility of evidence is to be conducted nor is there any requirement that
viva
    voce
evidence be heard:
R. v. Kematch
, 2010 MBCA 18, 252 C.C.C.
    (3d) 349, at para. 43;
United States of America v. Anderson
, 2007 ONCA
    84, 85 O.R. (3d) 380, at para. 37. What is clear, however, is that before rendering
    a proper legal ruling, the trial judge must have the necessary factual
    foundation, in some form, on which to make an informed decision.

[22]

I
    recognize that, had the trial judge conducted a proper
voir dire
, he
    might nonetheless have concluded that the evidence was relevant. That is not
    the end of the admissibility inquiry, however. There is still the question of whether
    the prejudicial effect of the evidence outweighs its probative value. That is a
    separate inquiry that the trial judge was obliged to consider. As Rothstein J.
    said in
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 50 (
White
    (2011)
):

Otherwise admissible evidence may
    still be removed from consideration by the jury on the basis that it is more
    prejudicial than probative.

[23]

The
    trial judge provided no such analysis in this case despite trial counsels
    urging that he do so. Rather, he appears to have proceeded on the basis that,
    if the evidence was relevant, it was automatically admissible. That conclusion
    ignores the second stage of the admissibility inquiry. The failure to engage in
    that second stage is an error of law. Given the state of the record before us,
    I cannot reach a proper conclusion on that second stage, especially absent the
    appellants evidence on the issue, or at least counsels summary of what that
    evidence would have been. I do note, however, that the circumstances
    surrounding the appellants failure to attend on his first trial date could
    certainly have a bearing on the probative value/prejudicial effect test. For
    example, if the appellant had been unable to attend the first trial date
    because of illness, that would cast a very different light on the probative
    value of the evidence.

[24]

The
    probative value/prejudicial effect test is of particular importance when considering
    post-offence conduct evidence because of the recognized concern regarding its
    potential misuse by jurors. As Rothstein J. also said in
White (2011)
,
    at para. 23:

That being said, though the use of
    such evidence has an extensive history in our criminal jurisprudence, it has
    also long been recognized that the introduction of post-offence conduct for the
    purpose of establishing the accused's "consciousness of guilt"
    carries with it a substantial risk of jury error. Jurors may be tempted to
    "jump too quickly from evidence of post-offence conduct to an inference of
    guilt" without giving proper consideration to alternate explanations for
    the conduct in question. [Citations omitted.]

[25]

That
    concern might have been addressed if the jury had been properly instructed on
    the use to which they could put the evidence, but they were not.  This is the
    second error, to which I now turn.

Instructions to the jury

[26]

The
    admissibility issue aside, I have concerns with the manner in which the trial
    judge dealt with this evidence before the jury. Having admitted the evidence,
    with all of its known risks, the trial judge had to be especially careful in
    terms of what he told the jury as to the use to which the evidence could be
    put. I conclude that the trial judge also failed in this respect.

[27]

What
    the trial judge did in his instructions to the jury was give them the specimen
    form of instruction regarding post-offence conduct, although he did not give
    the complete specimen instruction. Rather, he gave an abbreviated version of
    it.
[1]


[28]

I
    appreciate that trial judges are not slaves to specimen instructions. They are
    entitled to depart from the language of the specimen instructions as they deem
    necessary or to devise language of their own. What is crucial, however, is that
    the legal proposition that underlies the instruction must be recognized and
    communicated in a proper fashion and it must be related to the evidence. That
    did not happen in this case. Specifically, the trial judge did not advise the
    jury about any alternative explanations for the appellants conduct. He failed
    to do so notwithstanding the express direction, in the specimen instruction, to
    review relevant evidence about explanations.

[29]

As
    a consequence, the trial judge did not provide any assistance to the jury as to
    how to weigh that post-offence conduct evidence in the context of the evidence
    as a whole. In particular, the trial judge failed to alert the jury to other
    explanations that there might be for the appellants failure to appear at his
    first trial that were unrelated to the question of the appellants guilt
    respecting the charges that he faced.

[30]

The
    need to caution the jury that there might be alternative explanations for the
    impugned conduct has been made clear in a number of cases. The need for this
    caution was stressed in
R. v. White
, [1998] 2 S.C.R. 72 (
White
    (1998)
). For example, Major J. said, at para. 57:

As previously noted, there is a
    risk that juries might jump too quickly from evidence of post-offence conduct
    to an inference of guilt.
However, the best way for a trial judge to address
    that danger is simply to make sure that the jury are aware of any other
    explanations for the accused's actions
, and that they know they should
    reserve their final judgment about the meaning of the accused's conduct until
    all the evidence has been considered in the normal course of their
    deliberations. [Emphasis added.]

[31]

To
    the same effect is the decision in
R. v. Hall
, 2010 ONCA 724, 263
    C.C.C. (3d) 5, where Feldman and Simmons JJ.A. said, at para. 136:

The trial judge must provide a
    clear cautionary instruction to the jury against drawing incriminating
    inferences from post-offence conduct without considering alternate explanations
    for the impugned conduct.

[32]

On
    that point, there was evidence, albeit limited, before the jury regarding other
    explanations for the appellants failure to appear on his first trial date. The
    defence entered into evidence the recognizance that the appellant had been
    granted on April 10, 2013. The defence also entered into evidence the order for
    committal dated August 21, 2014, that authorized the arrest of the appellant
    after his then girlfriend was relieved of her duty as his surety.

[33]

These
    events were referred to by the appellants counsel in his closing submissions
    when he said, in part:

And when my friend was discussing
    this, the one thing that he left out was Exhibit Number 2, that on August the
    21
st
, 2014, that surety, that girlfriend, the person with whom he
    was supposed to live revoked. Meaning that Mr. McKenna would have to return to
    Ontario and surrender himself into jail, and perhaps sit in jail until the
    trial, unless a bail hearing or something transpired.

[34]

The
    trial judge did not provide the jury with any alternative explanations. His
    charge is silent on this issue but for his summary of the Crown and defence
    positions. In terms of the Crowns position he said:

The position of the Crown is that
    this evidence should be considered by you that Jason McKenna wished to avoid
    being tried on these charges and that Jason McKenna possessed a guilty state of
    mind with respect to the charges that are before you.

On the defence position, the trial judge said:

Finally the after-the-fact
    conduct: Mr. McKenna always attended for court when he had a surety. His surety
    was revoked on August 21
st
, 2014. Exhibit two is a copy of the order
    for Mr. McKenna's committal because of that surety revocation. Jason was
    subject to arrest from August 21st, 2014 onward. Had he attended at the
    original trial date of May 25
th
, 2015, he was subject to being
    arrested on the spot. You may find that Mr. McKennas failure to attend his
    original trial date is explained by his not wanting to be arrested and
    committed to custody while allegations to which he has always pled not guilty
    remained before the court.

[35]

After
    the trial judge completed his instructions to the jury, counsel for the
    appellant complained about the failure of the trial judge to put alternative
    explanations for the appellants non-attendance to the jury, a complaint that
    counsel had also made during the pre-charge conference. The trial judge refused
    to alter his charge.

[36]

In
    my view, the trial judge did not meet his obligation, as enunciated in both
White
    (1998)
and
White (2011)
, to ensure that the jury was aware of,
    and considered, specific alternative explanations for the appellants post-offence
    conduct. This failure arose first from his decision to bar the appellant from
    giving evidence on the
voir dire
. It then continued when the trial
    judge failed to fully obtain the alternative explanations and include them in
    his charge. The absence of these alternative explanations raised the very real risk
    that the jury would misuse the post-offence conduct evidence, which is
    precisely the concern that underlies the requirement for the necessary caution
    in the first place.

[37]

The
    importance of providing the jury with the alternative explanations is
    highlighted by the decision in
White (1998)
. In dismissing the appeal
    in that case, Major J., at para. 58, pointed with approval to the trial judges
    instructions to the jury:

He reminded the jury that flight
    or concealment does not necessarily imply guilt, but can arise from any number
    of innocent motives,
and he gave examples of such motives
. He further
    instructed the jury that there might be "very valid reasons" for the
    appellants' conduct other than their guilt for Chiu's murder;
again, he
    reviewed the alternative explanations put forth by the defence
, namely the
    parole violations and the bank robberies. [Emphasis added.]

[38]

In
    addition to these concerns, I would also note that the trial judge did not
    include in his charge to the jury the type of cautionary note that was
    discussed in
White (1998)
and
White (2011)
and was referred
    to, most recently, in
R. v. Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R.
    760. In
Rodgerson
,
Moldaver J. commented favourably, at para.
    25, on this particular aspect of the trial judges charge:

I wish to caution you about a
    potential danger concerning post offence conduct. Post offence conduct may
    appear more probative than it really is, and may be, by its very nature, less
    reliable than it seems, or may be consistent with other less obvious
    explanations than the one advanced by Crown counsel.

[39]

I
    do not agree with the suggestion that the trial judges reference to the alternative
    explanation offered by the defence in closing submissions is sufficient, in
    this instance, to cure the problem. I say that for two reasons. One is the
    salient reality that explanations coming directly from the judge will carry
    more weight with the jury than will simply repeating what defence counsel has
    said. The other is that the reference itself was completely detached from the
    trial judges original post-offence conduct instruction.  Articulated in
    isolation, it did not serve to remind the jury that they could only use this
    evidence in relation to the guilt of the appellant if they rejected any other
    explanation for his conduct.

[40]

The
    fact remains that the trial judge did not ensure that the jury was made aware
    of possible alternative explanations nor did he caution them that these
    alternative explanations might render the post-offence conduct evidence of
    minimal assistance, as the trial judge did in
White (2011)
.  As a
    result, the trial judge failed to equip a jury with the tools needed to return
    a true verdict in the specific case:
R. v. Bailey
, 2016 ONCA 516, 339
    C.C.C. (3d) 463, at para. 42.

[41]

Those
    points made, I am mindful of the fact that an accused person is entitled to a proper
    jury charge, not to a perfect one. As Lamer C.J.C. said in
R. v. Jacquard
,
    [1997] 1 S.C.R. 314, at para. 2:

This Court has stated on repeated
    occasions that accused individuals are entitled to properly instructed juries.
    There is, however, no requirement for perfectly instructed juries.

[42]

A
    properly instructed jury is key to a fair trial. In deciding whether the
    accused has received a properly instructed jury, the nature of the error is,
    therefore, of importance. As discussed in
R. v. Khan
, 2001 SCC 86, [2001]
    3 S.C.R. 823, at para. 20, when dealing with the use of the curative proviso, errors
    that are harmless or minor, and which could not have had any impact on the
    verdict, are insufficient to require a new trial. In the same vein, errors that
    are serious but where the evidence is so overwhelming that no miscarriage of
    justice occurred also do not warrant a new trial.

[43]

I
    do not view the errors in the jury charge in this case to fall within either of
    those exceptional categories. The second category is not engaged because the evidence
    was not overwhelming. The verdict turned entirely on the jurys view of the
    evidence of the two young complainants. More significantly, the first category
    is also not engaged. The failure to give a proper and complete instruction on
    the use of the post-offence conduct evidence is neither minor nor harmless. It
    was a serious error. As the decisions in
White (1998)
and
White
    (2011)
, along with others, make clear, this type of evidence is particularly
    problematic and prone to misuse. It is a point that is well made in
R. v.
    B. (S.C.)
(1997), 36 O.R. (3d) 516 (C.A.) where Doherty and Rosenberg
    JJ.A. said, at p. 527:

The admissibility of
    after-the-fact conduct is not without its risks. There is always the danger
    that the trier of fact will read too much into that behaviour. Conduct which is
    no more than unusual, rash or thoughtless can take on an unwarranted
    significance when viewed in hindsight at trial. The danger that after-the-fact
    conduct will be overemphasized by a trier of fact exists whether evidence of
    that conduct is offered by the Crown or the defence. That risk is best avoided
    by a judicious use of the power to exclude prejudicial evidence even though it
    has some probative value.

[44]

The
    suggestion that the failure to deal with this evidence in the jury instructions
    can be excused on the basis of the no harm, no foul principle, is one that I
    do not accept nor, in my view, does it accord with the concerns respecting this
    type of evidence that are enunciated in the case law to which I have made
    reference.

[45]

I
    would add one further observation. If post-offence conduct is properly admitted
    at trial, and that post-offence conduct by itself constitutes a criminal
    offence, then it seems to me that trial judges should consider, in appropriate
    cases, including the equivalent of a bad character instruction. In such
    cases, the jury would be additionally instructed that, even if they do not view
    the post-offence conduct as evidence tending to show the accused is guilty of
    the offence being tried, they must also ensure that they do not use the
    evidence to conclude that the accused person is the type of person who would
    have committed the offence: see
R. v. Samuel
, 2013 ONCA 551, 310 O.A.C.
    175, at paras 45-46. A brief limiting instruction, along the lines of the ones
    given when dealing with prior convictions of the accused person, could be
    included, such as:

It is very important that you
    understand that you must not use this after-the-fact evidence to decide, or to
    help you decide, that (NOA) is the sort of person who would commit the
    offence(s) charged or is a person of bad character and thus likely have
    committed the offence(s) charged.

I appreciate that the trial judge was not asked to
    provide that instruction in this case.

[46]

In
    my view, the failure of the trial judge to properly deal with the post-offence
    conduct evidence gives rise to a very real concern whether the verdict was one
    based on the evidence properly evaluated. As a consequence, I am not satisfied
    that the appellants trial was a fair one. The convictions therefore cannot safely
    stand.

C.

Conclusion

[47]

I
    would allow the appeal, set aside the convictions and remit the matter back to
    the Superior Court of Justice for a new trial.

I.V.B.
    Nordheimer J.A.

I
    agree. J.C. MacPherson J.A.

Huscroft J.A. (Dissenting):

[48]

The
    appellant was found guilty by a jury of two counts of sexual assault against two young female complainants. He chose not to testify or call any evidence in his defence.

[49]

This
    appeal is concerned solely with the admission of evidence of the appellants
    post-offence conduct. My colleague concludes that the trial judge erred in
    admitting evidence that the appellant failed to appear at his first trial, and
    did not cure this error with a proper instruction to the jury. He concludes
    that the trial was unfair as a result and would order a new trial in this
    matter.

[50]

With
    respect, I disagree. I would dismiss the appeal for the reasons that follow.

The
voir dire

[51]

Post-offence
    conduct evidence is simply a form of circumstantial evidence, albeit one that
    has frequently given rise to difficulties. Plainly, the appellants failure to
    appear at his first trial was evidence from which an inference of guilt could
    be drawn.

[52]

Nordheimer
    J.A. does not say that this inference could not be drawn, nor could he. It is
    one of the examples set out by the Supreme Court in
White (1998)
, at
    para. 19, where Major J. wrote: an inference of guilt may be drawn from the
    fact that the accused fled from the scene of the crime or the jurisdiction in
    which it was committed, attempted to resist arrest, or
failed to appear at
    trial
 (emphasis added). My colleagues concern is that the trial judge did
    not allow the appellant to testify on the
voir dire
before deciding to
    admit the evidence of his failure to appear.

[53]

The
    trial judge was under no duty to hear
viva voce
evidence on the
voir
    dire
. Nordheimer J.A. acknowledges as much, but says that this case is
    different because in the absence of
viva voce
evidence from the
    appellant, or at least a summary of the appellants anticipated evidence from
    counsel, the trial judge did not have the necessary factual foundation to make
    an informed decision on admissibility.

[54]

I
    disagree. The trial judge was informed by the appellants counsel that he
    sought to call evidence to establish that the appellant failed to appear at
    his trial because of his surety revoking [and] just being in an emotional and financial
    dire straits. In my view, this short summary of the proposed evidence was
    sufficient in the circumstances to allow the trial judge to make an informed
    decision.
Viva voce

evidence was not required.

[55]

The
    appellant does not say that had he been permitted to testify at the
voir
    dire
, the Crowns evidence would have been rendered inadmissible. Nor
    could he: at most, evidence from the appellant might have suggested another
    reasonable inference that could be drawn to explain his failure to appear for
    his first trial  one
not
consistent with guilt. It would still be for
    the jury to decide on the basis of the evidence as a whole  including any
    evidence the appellant chose to call
in the trial proper
 whether that
    inference should be drawn:
White (1998
)
, at para. 27.

[56]

I
    also do not accept that the trial judge failed to exercise his residual
    discretion to exclude the evidence. His reasons must be read as a whole and in
    the context of the parties submissions, which clearly addressed the issue of
    possible prejudice.

[57]

There
    is no basis to speculate, as Nordheimer J.A. does, that the probative value of
    the evidence concerning the appellants failure to appear could have been cast
    in a different light had the appellant testified at the
voir dire


    for example, if, as my colleague suggests, the appellant had testified that he
    was unable to attend the first trial because he was ill. The appellant did not
    suggest that he had such an excuse for failing to appear at his trial. Rather,
    his counsel advised the trial judge that the appellant sought to call evidence at
    the
voir dire
to establish that he failed to appear at his trial
    because of his surety revoking [and] just being in an emotional and financial
    dire straits. This was evidence supportive of a competing inference, but it
    was for the jury to weigh.

[58]

Ultimately,
    the trial judge determined that evidence of the appellants failure to appear
    at his first trial was admissible and sought to minimize the possibility of
    prejudice with a caution to the jury. His decision is entitled to deference.

The jury instructions

[59]

The
    appellants failure to appear at his first trial is circumstantial evidence
    from which an inference of guilt may be drawn. As Watt J.A. explained in
R.
    v. Rosen
, 2018 ONCA 246, 361 C.C.C. (3d) 79, at para. 50:

It simply cannot be suggested that
    evidence of anything done or said by an accused after an offence has been
    committed gives rise to special rules of admissibility or mandates special
    warnings to border its use by the trier of fact. It is for the jury to say, on
    the basis of the evidence as a whole, whether the post-offence conduct is
    related to the crime charged rather than to something else and, if so, how much
    weight, if any, should be assigned to it in the final determination of the
    adequacy of the case for the Crown:
R. v. White
, 2011 SCC 13, [2011] 1
    S.C.R. 433, at paras. 105 and 137.

[60]

The
    trial judges mid-trial instruction properly informed the jury that it could use
    this evidence of after-the-fact conduct along with other evidence to support an
    inference of guilt only if [it] rejected any other explanation for this
    conduct. The appellant did not testify or call any other evidence. As a
    result, the only evidence at trial supportive of the defence position regarding
    the post-offence conduct was that a committal order had been issued because his
    surety had revoked.

The trial judge informed the jury of both the Crown
    and the defence positions concerning the appellants post-offence conduct. I do
    not see what more was required.

[61]

Nordheimer
    J.A. concludes that the trial judges error at the
voir dire
might
    have been addressed if the jury had been properly instructed on the use to
    which they could put the evidence, but they were not. Again, I disagree. In my
    view, the trial judges charge was adequate in the circumstances and reveals no
    error.

[62]

My
    colleague acknowledges that trial judges are not slaves to specimen
    instructions, but, with respect, his decision suggests otherwise. He states
    that the trial judge failed to advise the jury about the alternative
    explanation for the appellants conduct notwithstanding the express
    instruction, in the specimen instruction, to review relevant evidence about
    explanations. He concludes that the trial judge failed to give the jury any
    assistance about how to weigh the post-offence conduct evidence in the context
    of the evidence as a whole.

[63]

Specimen
    instructions are a resource that trial judges are entitled to use in crafting
    their instructions to suit particular cases. As Doherty J.A. has explained, 
the adequacy of jury instructions is not measured against
    their conformity to the content of a model instruction:
Bailey
, at para. 42;

see also
R.
    v. Candir
, 2009 ONCA 915, 250 C.C.C. (3d) 139,
    at para. 116
. Instead, as the Supreme Court
    has emphasized, appellate courts must adopt a functional approach to reviewing
    jury charges:
Jacquard
, at para. 62.
    The question is whether the jury understands: (i) what factual issues need to
    be resolved; (ii) the law that is to be applied to those issues and the
    evidence; (iii) the positions of the parties; and (iv) the evidence relevant to
    the positions taken by the parties. There is no legal obligation to follow the
    specimen instruction and failing to do so does not in itself constitute legal
    error.

[64]

The
    importance of cautioning the jury as to the possibility of alternative
    explanations for the appellants failure to appear at his first trial is clear,
    but the trial judge was under no obligation to do so in a formulaic manner. The
    trial judge gave a mid-trial instruction that functionally tracked the language
    of the specimen instruction. He stated:

As circumstantial evidence,
    evidence of after-the-fact conduct has only an indirect bearing on the issue of
    Mr. McKennas guilt. You must be careful about inferring that Mr. McKenna is
    guilty on the basis of evidence of after-the-fact conduct. Because there might
    be other explanations for that conduct, something unconnected with his
    participation in the offence charged. You may use this evidence of after-the-fact
    conduct along with other evidence to support an inference of guilt only if you
    had [
sic
] rejected any other explanation for this conduct.

[65]

I
    see no error in this. Nor do I see any error in the trial judges instructions
    to the jury at the conclusion of the trial. The trial judge outlined the
    positions of the Crown and the defence concerning the alternative explanations
    for the appellants failure to appear. In outlining the Crown position, he stated:

The position of the Crown is that
    this evidence should be considered by you that Jason McKenna wished to avoid
    being tried on these charges and that Jason McKenna possessed a guilty state of
    mind with respect to the charges that are before you.

[66]

Concerning
    the defence position, he stated:

Finally, the after-the-fact
    conduct: Mr. McKenna always attended for court when he had a surety. His surety
    was revoked on August 21
st
, 2014. Exhibit two is a copy of the order
    for Mr. McKenna's committal because of that surety revocation. Jason was
    subject to arrest from August 21
st
, 2014 onward. Had he attended at
    the original trial date of May 25
th
, 2015, he was subject to being
    arrested on the spot. You may find that Mr. McKennas failure to attend his
    original trial date is explained by his not wanting to be arrested and
    committed to custody while allegations to which he has always pled not guilty
    remained before the court.

[67]

Viewed
    from a functional perspective, the jury was properly equipped to decide what it
    had to decide. I note that the appellant did not request an instruction on
    discreditable conduct, and in my view none was necessary.

[68]

Nordheimer
    J.A. concludes that the trial judge erred by failing to ensure that the jury
    was aware of, and considered, specific alternate explanations for the
    appellants failure to appear for his first trial. I do not agree. The trial
    judge was required to review relevant evidence about explanations and he did
    so. It does not matter that he did so in the context of his review of the
    defence submissions. What matters is what the trial judge said  not where in his
    instructions he said it  and that what he said was clear. You may find, he
    said, that [the appellants] failure to attend his original trial date is
    explained by his not wanting to be arrested and committed to custody while
    allegations to which he has always pled not guilty remained before the court.
    That was a possible inference from this piece of evidence. In light of the
    evidence called at trial, it was the only competing inference that could have
    been drawn.

Conclusion

[69]

I would dismiss the appeal.

Grant
    Huscroft J.A.

Released: December 20, 2018
    J.C.M.





[1]

As I earlier noted, the trial judge also gave a mid-trial
    instruction with respect to the post-offence conduct evidence. That instruction
    also omitted portions of the specimen instruction.


