



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. L.K., 2020 ONCA 262

DATE: 20200423

DOCKET: C56622

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.K.

Appellant

Michael Lacy, for the appellant

Roger Shallow, for the respondent

Heard: January 27, 2020

On appeal from the conviction entered by
    Justice Gary T. Trotter of the Superior Court of Justice, sitting with a jury, on
    June 3, 2011, and the sentence imposed on February 7, 2012.

Hourigan J.A.:

A.

introduction

[1]

The appellant was charged with seven counts relating
    to her involvement in sexual offences committed by two of her male
    acquaintances against her minor daughter and nine counts relating to her
    conduct during the course of the resulting police investigation. She was
    convicted of the following ten offences: one count of sexual assault, two
    counts of criminal negligence, two counts of failing to provide the necessaries
    of life, one count of child abandonment, two counts of obstructing a peace
    officer, and two counts of obstructing justice. The convictions for failing to provide
    the necessaries of life and child abandonment were conditionally stayed
    pursuant to the principle in
R. v. Keinapple
, [1975] 1 S.C.R. 729. She
    was sentenced to a global period of incarceration of 6.5 years.

[2]

The appellant appeals her convictions and seeks
    leave to appeal her sentence. She also brings a motion to adduce fresh evidence
    regarding her cognitive and executive function and her alleged impaired ability
    to process information.

[3]

During oral argument, the appellant abandoned
    the sentence appeal as moot and elected not to proceed with her motion to file
    fresh evidence. She also abandoned five of her ten grounds of appeal. The
    remaining grounds relate primarily to alleged deficiencies in the jury charge.

[4]

These reasons explain why I would dismiss the
    appeal. In summary, the trial judge properly charged the jury. His instructions
    provided the necessary guidance to effectively adjudicate the charges and, in
    particular, to apply the burden of proof.  While there was a minor legal error
    that became apparent only after the Supreme Court of Canada clarified the law, the
    error had no impact on the overall fairness of the jury charge.

B.

facts

[5]

The complainant, SK, was born in Romania in 1995.
    She was adopted by the appellant in 1997. SK lived primarily in Paris, Ontario,
    where she was raised by the appellant and the appellant's elderly parents.

[6]

In 2003, the appellant's friend of many years,
    Garry Byer, was imprisoned for allegedly committing sexual assaults. When the
    appellant visited Byer in custody, she brought along SK, who was nine years old
    at the time. The appellant was subsequently introduced to several men who had
    been convicted of sexual offences against children. One of these men, Douglas
    McKenzie, contacted the appellant and SK by phone while he was in custody. Two
    othersRandy Bartley and Gary Hoare, who were also imprisoned and shared cells
    with McKenzie at some pointbefriended the appellant and associated with her
    and SK upon their release from jail.

[7]

The appellant allowed SK to be alone with
    Bartley and Hoare on many occasions, sometimes for extended periods of time and
    sometimes overnight. When one of the appellant's high school friends met Hoare,
    she suspected he might be a pedophile and contacted the police.

[8]

Over the course of the 16-month police
    investigation, the appellant gave seven statements to the police. There were
    many inconsistencies in the statements about how the appellant came to know Bartley
    and Hoare and whether she had ever left the complainant alone with either of them.
    The appellant denied knowledge of any sexual contact between Hoare or Bartley
    and SK. She advised the officers that the complainant never told her about
    anything inappropriate. However, the appellant acknowledged that leaving SK
    with Hoare was a risk and that it demonstrated a lack of judgment on her part.

[9]

Following the lengthy police investigation,
    several charges were laid against Hoare, Bartley, and, eventually, the
    appellant. Hoare pleaded guilty to one count of invitation to sexual touching
    (on the basis that SK walked in on him masturbating). Bartley pleaded guilty to
    three offences relating to SK: sexual assault, sexual interference, and
    invitation to sexual touching.

[10]

The appellants trial centred on a single
    question: what was the appellants role in, and knowledge of, SKs sexual abuse?
    The Crown argued that the appellant knew Bartley and Hoare were child sex
    offenders and nonetheless aided and encouraged them in committing offences
    against SK. She did this by cultivating their relationships with SK and by
    giving them repeated and prolonged access to her. The Crown alleged that by
    exposing her daughter to these men, the offences were objectively foreseeable. Further,
    the appellant's acts and omissions were a significant contributing cause to the
    long-term psychological harm that SK has and will continue to experience. The
    Crown also argued the appellant lied to the police throughout the investigation
    and attempted to prevent authorities from learning the truth by asking the
    complainant and another witness to lie.

[11]

The defence argued the appellant was unaware of
    the alleged inappropriate sexual acts against SK and that, while she did lie to
    police during her interviews, the untruths did not impede the police
    investigation. The appellant did not testify at trial. However, her police interviews
    were admitted into evidence after defence counsel conceded their voluntariness.

C.

issues

[12]

This appeal raises the following issues:


(i)

Did the trial judge err by failing to instruct
    the jury about exculpatory evidence pursuant to
R. v. W.D.
, [1991] 1 S.C.R.
    742?


(ii)

Did the trial judge err by failing to provide a
    no probative value instruction about the appellants police statements with
    respect to the sexual assault and negligence-based charges?


(iii)

Did the trial judge err by leaving criminal
    negligence with the jury?


(iv)

Did the trial judge err by instructing the jury
    that the offence of child abandonment required an objective assessment of the
    appellants intent?


(v)

Did the trial judge err by not providing a
    specific limiting instruction regarding the evidence the complainants treating
    psychologist gave about her discussions with the complainant?

D.

Analysis

[13]

Before considering the grounds of appeal related
    to alleged errors in the jury charge, it is helpful to consider the purpose and
    standard of appellate review of jury charges.

[14]

The starting proposition is that an accused is
    entitled to a properly instructed jury, not a perfectly instructed jury:
R.
    v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 9;

R. v.
    Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19 at para. 41;
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at paras. 2, 6. To determine if the jury
    was properly instructed, an appellate court takes a functional approach: it
    asks whether the charge as a whole, in the overall context of the trial (including
    addresses of counsel and the positions they advanced), enabled the jury to
    decide the case according to the law and evidence:
Calnen
, at para. 9;

R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39;
R.
    v. Adan
, 2019 ONCA 709 at paras. 61-63.

[15]

The absence of trial counsels objection is not
    determinative of the adequacy of a charge. However, trial counsel's silence is
    often compelling evidence that the failure to include an instruction now sought
    did not actually prejudice the appellant:
R. v. Daley
, 2007 SCC 53,
    [2007] 3 S.C.R. 523, at para. 58;
Jacquard
, at para. 38. Counsel are
    expected to fulfill their professional obligations as officers of the court and
    raise any concerns about the adequacy of a charge with the trial judge. A
    pre-charge conference is not a game of gotcha where counsel can sit quietly and
    reserve his or her objection for appeal.

[16]

This latter point is particularly important in
    this case. The trial judge afforded both counsel ample opportunity to discuss
    and review the draft jury instructions. It is evident from the record that he
    was open to input and striving to craft a fair charge. I cite, as but one
    example, the trial judges decision not to include a full
Vetrovec
warning, which would have required him to refer to large amounts of independent
    confirmatory evidence. In the face of this record, this court is entitled to
    consider trial counsels silence regarding the numerous errors that they now
    allege individually, and cumulatively, entitle the appellant to a new trial:
Adan
,
    at para. 63.

(I)

The
W.D.
Instruction

[17]

The appellant says the jury ought to have
    been given a
W.D.
instruction
.
It is the second part of the
W.D.
test that the appellant says was not articulated for the jury.
In the appellants view, the trial judge should have
    told the jury that:

·

even if they did not believe Bartley and Hoares
    evidence, they were still obliged to acquit the appellant if either Bartley or Hoares
    evidence gave them reason to doubt her guilt; and,

·

even if they did not believe the appellants
    denials of guilt in her police statements, they were still obliged to acquit if
    these denials gave them reason to doubt her guilt.

[18]

The second part of the
W.D.
analysis
    provides that if the jury does not believe the accuseds testimony or other
    exculpatory evidence, but this evidence raises a reasonable doubt, the jury
    must acquit. The Alberta Court of Appeals recent reformulation of the
W.D.
test in
R. v. Ryon
, 2019 ABCA 36, 371 C.C.C. (3d) 225 at para. 38,
    clarifies the underlying objective of this step:

[W]hen assessing exculpatory evidence jurors
    should understand that they have three choices, not two: they may accept the
    evidence, they may reject it, or they may find themselves unsure whether the
    evidence is true or false. In other words, there is a third alternative to
    confident acceptance or confident rejection and if they find themselves in this
    middle ground that usually means they have a reasonable doubt that must benefit
    the accused.

[19]

Thus, the second step ensures jurors understand
    that even if they cannot determine whether exculpatory evidence should be
    believed or rejected, the evidence may still raise a reasonable doubt and, if
    so, they must acquit.

[20]

For my analysis on this ground of appeal, I will
    first consider the testimony of Bartley and Hoare, followed by a review of the
    appellant's police statements.

(1)

Bartley and Hoares Testimony

[21]

Bartley and Hoare testified about their criminal
    records involving sexual offences against children, their relationship with SK,
    and the appellants knowledge of both these things.

[22]

As I explain, their testimony did not raise a
    reasonable doubt about the appellants guilt. Thus, the trial judge did not err
    by failing to give a
W.D.
instruction in this regard.

(a)

Bartley

[23]

The appellant was charged with three offences in
    relation to the sexual offences Bartley committed against SK: criminal
    negligence, failure to provide the necessaries of life, and sexual assault.

[24]

Regarding the negligence-based charges, Bartley testified
    that the appellant knew about his previous criminal convictions for sexual
    offences involving children and that he showed her the medication he was on to
    reduce his sex drive. Bartley also testified about his relationship with SK and
    the appellants knowledge about that relationship. His evidence demonstrated
    that the appellant had the opportunity to observe many red flags that pointed
    to an inappropriate relationship. These include the fact that he kept a lock of
    SKs hair, he hung a picture of her on the wall, he would kiss her goodbye when
    she left, and he had at least one inappropriate conversation with SK regarding
    her private parts.

[25]

No part of Bartleys
    evidence on its own was capable of leaving the jury with a reasonable doubt
    about the appellants guilt on any of the negligence-based charges. Indeed, even
    if the jury accepted Bartley's testimony, they could still find, beyond a
    reasonable doubt, that the appellant acted with a reckless disregard for SKs
    well-being by leaving SK in Bartleys care. A
W.D.
instruction is not appropriate here because
    Bartleys evidence on these offences is not exculpatory in the
W.D.
sense of
    that term.

[26]

Regarding the sexual assault charge, Bartley
    denied ever sexually assaulting SK, despite having pleaded guilty to this
    offence.
When asked about his plea, Bartley said he
    could not remember everything about the proceedings and that he did not have
    actual knowledge of some of the facts that formed the guilty plea's Agreed
    Statement of Facts.
I note
    that in the portion of the jury charge related to the sexual assault charge,
    the trial judge focuses on Bartleys denials. He then explicitly instructs the
    jury that unless they are satisfied beyond a reasonable doubt that Barley
    sexually assaulted SK, they must acquit. He went on to say that without SKs
    sexual assault, there would have been no offence for the appellant to aid or
    abet.

[27]

Viewed in isolation, portions of Bartleys
    testimony could potentially raise doubt about his guilt on the sexual assault offence.
    For example, he testified that he is not sexually attracted to underage girls. He
    also explained that he pleaded guilty to the charges related to SK because he
    wanted to avoid a longer sentence and a dangerous offender application. The
    trial judge instructed the jury that Bartley may have had any number of reasons
    for pleading guilty.

[28]

The jury charge
    considered as a whole provided the functional equivalent of a
W.D.
instruction. The trial judge could have explicitly instructed the jury that if
    Bartley's denial of sexually assaulting SK left them with a reasonable doubt,
    they must acquit the appellant on the sexual assault charge involving Bartley. But
    that instruction was not requested. Nor was it necessary or would it have added
    anything of substance to the charge.

(b)

Hoare

[29]

The appellant was charged with the same three
    offences in relation to the sexual offence Hoare committed against SK: criminal
    negligence, failure to provide the necessaries of life, and sexual assault.
It is unnecessary to consider whether there
    should have been a
W.D.
instruction concerning the sexual assault
    involving Hoare. The jury acquitted the appellant on that charge.

[30]

Regarding the negligence-based
    charges,
Hoare testified that he did not tell the
    appellant why he was in jail. He said he did not discuss his previous
    convictions for sexual offences against children or his probation conditions
    with the appellant. But he left open the possibility that someone else could
    have told her. Hoare also testified about his relationship with SK. As with
    Bartley, several pieces of evidence suggested a possible inappropriate
    relationship with SK. For example, he bought SK presents, including a cell
    phone. Hoare also admitted that he walked around the appellants Paris home
    naked and that both the appellant and SK caught him doing so.

[31]

While Hoare denied
    sexually assaulting SK, his evidence describing what he did do in her presence
    was not exculpatory in relation to the negligence-based charges. Just as with
    Bartley, that evidence supported the Crowns argument about the appellants
    reckless disregard for SKs well-being. Accordingly, no
W.D.
instruction was necessary on those charges.

(2)

The Appellants Police Statements

[32]

The next issue is whether a
W.D.
instruction was required regarding the appellants police statements. Again, a
    question arises about whether these denials actually amounted to exculpatory
    evidence. I say this because part of the Crowns theory was that the appellant
    was willfully blind. In nearly every instance where the appellant denied
    knowledge, it was arguable that the circumstances she admitted to pointed
    strongly to her being willfully blind.

[33]

For the purposes of my analysis, I accept that
    the appellants police statements contained potentially exculpatory evidence.
    In my view, they are correctly identified as mixed out-of-court statements. Some
    of their contents are inculpatory while other parts are exculpatory:
R. v.
    M.P.
, 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 61.

[34]

The application of
W.D.
is
    straightforward in the classic scenario where a complainant alleges that the
    accused engaged in criminal conduct and the accused denies the allegation
    completely. But with mixed out of court statements, the application of
W.D.
is more nuanced because the exculpatory aspects of the statement are
    inextricably intertwined with the inculpatory aspects. Watt J.A. writing for this
    court in
M.P.
,
at para. 61, considered the requirement for a
W.D.
instruction for mixed out of court statements:

A
second point
    concerns instructions about the evidentiary value of a mixed out-of-court
    statement of an accused. A mixed statement is one in which some of the
    contents are inculpatory and other parts exculpatory. Instructions on the
    exculpatory portions of the statement must make it clear that these parts of
    the statement retain their evidentiary value in exculpation as long as the jury
    does not reject them as untrue:
R. v. Bucik
,
2011
    ONCA 546, 274 C.C.C. (3d) 421, at paras. 32-34.
But the failure of a
    trial judge expressly to instruct the jury in these terms is not necessarily a
    fatal blow to a conviction provided that the charge, as a whole, makes the
    burden of proof in relation to reasonable doubt and issues of credibility clear
    to the jury and does not leave the case for them to decide on an either/or
    basis:
R. v. B.(P.)
,
2016 ONCA 12,
346 O.A.
C. 1, at para. 14.

[35]

In this case, the trial judge correctly
    described the burden of proof. He accurately explained the concept of
    reasonable doubt and made it clear that it could arise from the totality of the
    evidence or the absence of evidence. He made specific reference to the exhibits,
    which included the appellant's statements. In reviewing the evidence, the trial
    judge also referenced the potentially exculpatory portions of the appellants statements.
    He also reviewed each element of every offence in the multi-count indictment
    and explicitly linked the reasonable doubt requirement to each element.

[36]

The jury was not left with an either/or contest.
    They would have understood the burden of proof concerning reasonable doubt and
    issues of credibility. They understood that if they had a reasonable doubt they
    were obligated to acquit. In fact, they did acquit on one of the counts. In
    these circumstances, I am not satisfied that a specific
W.D.
instruction was required. Accordingly, I would dismiss this ground of appeal.

(II)

No Probative Value Instruction

[37]

The trial judge ruled that the appellant's lies
    to the police and her various statements were not capable of providing
    circumstantial evidence on the other charges. The Crown does not challenge this
    ruling on appeal.

[38]

The appellant submits that it was incumbent on
    the trial judge to instruct the jury that the evidence relating to the obstruction
    charges had no probative value on the substantive charges and could not be used
    as circumstantial evidence that the appellant knew of her daughters
    exploitation.

[39]

The appellant is correct that there was no
    specific instruction to the jury that the lies told to the police were not
    evidence on the other counts. However, the trial judge did give an explicit
    instruction that each count must be considered separately and only on the
    evidence relevant to that charge. Moreover, when the trial judge reviewed the
    evidence at length, he referred to the lies, many of which were admitted by the
    time of trial, only in respect of the obstructing justice charges. Importantly,
    the defence did not request a no probative value instruction and did not object
    to the charge on this point.

[40]

I recognize that in addition to failing to give
    a no probative value instruction, the trial judges description of the Crowns
    theory referenced the Crowns attempt to tie the lies to the appellants guilt
    on the charges other than the obstruction charges. However, in my view, it
    would have been clear to the jury from the instructions given that they were
    not to use the appellants lies as evidence on the other charges. I would,
    therefore, dismiss this ground of appeal.

(III)

Criminal Negligence

[41]

The appellant was charged with two counts of
    criminal negligence causing bodily harm:

·

Count 3: did by criminal negligence to wit: by
    exposing [SK] to Randolph BARTLEY, cause bodily harm to [SK], contrary to s.
    221 of the
Criminal Code
.

·

Count 6: did by criminal negligence to wit: by
    exposing [SK] to Gary Reid HOARE, cause bodily harm to [SK], contrary to s. 221
    of the
Criminal Code
.

[42]

Section 219(1) of the
Criminal Code
, R.S.C. 1985, c. C-46
provides that every
    one is criminally negligent who (a) in doing anything, or (b) in omitting to do
    anything that it is his duty to do, shows wanton or reckless disregard for the
    lives or safety of other persons. Duty is defined under s. 219(2) as imposed
    by law.

[43]

The defence brought an unsuccessful application
    for a directed verdict on count 6. The trial judge could not conclude there was
    no evidentiary basis upon which the jury could conclude that SKs exposure to
    Gary Hoare was a contributing cause of her psychological harm.

[44]

During the pre-charge discussions, the trial
    judge noted that the facts of this case are not typical of a charge of
    negligence causing bodily harm. Despite his reservations, the trial judge decided
    to leave the counts with the jury. He found the jury could consider only:

·

the harm the complainant has suffered or
    presently suffers from;

·

the harm flowing from the alleged abuse
    perpetrated by the two men; and,

·

the harm caused by the appellant's acts or
    omissions.

[45]

The appellant submits that approaching the issue
    in this way was problematic and prejudicial. The appellant concedes that bodily
    harm includes psychological harm:
R. v. McCraw
, [1991] 3 S.C.R. 72 at
    p. 80. However, she argues that considering the complainant's condition at the
    time of trial invariably entailed a future-based analysis going beyond the harm
    that was inflicted at the time of the offences, which occurred years earlier.
    According to the appellant, the date of the trial was an arbitrary line with
    which to assess whether psychological harm was caused.

[46]

This submission does not persuade me. The trial
    judges instructions made clear that existing, not future, harm was necessary
    for a conviction. The trial judge correctly reviewed the elements of the
    offence and related the relevant evidence to the charges. There was evidence
    available on each element of the offence on which the jury could convict. In
    particular, there was evidence to support the finding that the exposure to
    Bartley and Hoare caused psychological damage to the complainant that was extant
    at the time of trial.

[47]

The appellant makes one additional argument on
    this ground of appeal. She submits that the harm caused must be immediate. In
    support of that submission counsel referred to a driving case from this court:
R.
    v. Shilon
(2006), 240 C.C.C. (3d) 401 (Ont. C.A.).

[48]

In my view, the trial judge correctly rejected
    this argument. Immediacy of harm may serve to provide evidence of a causal link
    between the criminally negligent act and the bodily harm; however, there is no
    principled reason why it should be considered an essential element of the
    offence. The Crown is free to prove the causal link by other means. In this
    case, the Crown did so through expert evidence that established a causal link
    between the bodily harm suffered by the complainant and the complainants exposure
    to Bartley and Hoare.

[49]

Based on the foregoing, I would dismiss this
    ground of appeal.

(IV)

Child Abandonment

[50]

The trial judge instructed the jury that the
    appellants intent for the child abandonment count was to be assessed objectively.
    However, in
R. v. A.D.H.
, 2013 SCC 28, [2013] 2 S.C.R. 269released
    two years after the trial in this casethe Supreme Court ruled that the fault
    element for abandonment must be assessed subjectively.

[51]

The Crown concedes that, in light of this
    subsequent jurisprudence, the jury was not correctly instructed on the elements
    of child abandonment. However, the Crown relies on the
curative proviso
found in s. 686(1)(b)(iii) of the
Criminal Code
: he submits the error
    was harmless because it could have had no impact on the verdict.

[52]

I agree with the Crowns submission. The subjective
    fault requirement was imposed by the Supreme Court in
A.D.H.
to ensure
    that only those who commit the offence knowingly or recklessly are punished. In
    this case, the appellant was convicted of the more serious offences of sexual
    assault and criminal negligence causing bodily
harm,
both
    of which require the jury to consider the appellants subjective intent.

In these circumstances, there is no realistic
    possibility that the jury would, if properly instructed, conclude that the
    appellant did not have the requisite subjective intention. Thus, the error was
    of no consequence, and the
curative proviso
is available. Therefore,
    on this basis, I would dismiss this ground of appeal.

(V)

Expert Evidence

[53]

At trial, the Crown brought an application to
    call expert evidence on two points: (1) the phenomenon of incremental or
    delayed disclosure and (2) the bodily (psychological) harm suffered by the
    complainant. The trial judge denied the application for three reasons:

·

one of the proposed experts lacked the
    objectivity and impartiality required to testify;

·

expert evidence was not required for incremental
    or delayed disclosure; and,

·

the application to adduce evidence of bodily
    harm was premature because it was brought before the complainant's testimony
    and so it was not possible to determine whether the necessity criterion had
    been established.

[54]

After SK testified, defence counsel advised that
    she was not conceding the issue of psychological harm. Defence counsel took the
    position that SKs evidence did not establish that she was suffering the
    requisite degree of bodily harm under any of the offences. As a consequence of
    the defences position, the trial Crown renewed its application to call expert
    evidence.

[55]

The trial judge ruled that Dr. Jasmine Eliav, a
    registered child psychologist, could provide expert evidence on the issue of
    harm. Following that ruling, the trial Crown asked whether he could lead
    foundation evidence about Dr. Eliavs discussions with the complainant. The
    trial judge correctly responded that the expert opinion evidence is only as
    valuable as the proved foundation upon which it relies and that if Dr. Eliav
    testifies to things that have not been proved here, then it will detract from
    its value to the extent that they have not been proved, especially when the
    complainant testified.

[56]

During the course of her testimony, Dr. Eliav testified
    about what the complainant had told her during their therapeutic sessions. The
    appellant says the trial judge should have provided a limiting instruction
    regarding Dr. Eilavs testimony because there was a significant danger that the
    jury would use it to determine whether the abuse actually occurred.

[57]

I would not give effect to this submission. The
    trial judge instructed the jury how to deal with a situation where the expert
    relies on facts that are different from the facts they find from the evidence:

To the extent that the facts you find are
    different from the facts assumed or relied upon by the expert in reaching his
    or her conclusion, you may consider the experts opinion less helpful to you in
    deciding this case. How much or little you believe of or rely upon an experts
    opinion is entirely up to you.

[58]

Based on this instruction, I am satisfied the
    jury understood that it was their assessment of the facts that mattered. I am
    also satisfied the jury understood they were not bound to accept facts as
    proven simply because Dr. Eliav relied on them in providing her opinion. Therefore,
    I would dismiss this ground of appeal.

E.

Disposition

[59]

For the foregoing reasons, I would dismiss the
    appeal from conviction. I would also dismiss the sentence appeal and the motion
    to adduce fresh evidence as abandoned.

Released: D.D. April 23, 2020

C.W.
    Hourigan J.A.

I agree. Doherty
    J.A.

I agree.
    David Watt J.A.


