R. v. J.A.T.,

• Jurisdiction: Ontario
• Judge: O'Connor, A.C.J.O., Watt and Karakatsanis, JJ.A.
• Neutral Citation: 2012 ONCA 177
• Citation: 2012 ONCA 177,(2012), 290 O.A.C. 130 (CA),288 CCC (3d) 1,[2012] OJ No 1208 (QL),290 OAC 130,[2012] O.J. No 1208 (QL),(2012), 290 OAC 130 (CA),290 O.A.C. 130
• Date: 21 March 2012
• Court: Court of Appeal (Ontario)

R. v. J.A.T. (2012), 290 O.A.C. 130 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. MR.015

Her Majesty The Queen (respondent) v. J.A.T. (appellant)

(C49796; 2012 ONCA 177)

Indexed As: R. v. J.A.T.

Ontario Court of Appeal

O'Connor, A.C.J.O., Watt and Karakatsanis, JJ.A.

March 21, 2012.

Summary:

The accused allegedly sexually abused the four daughters of his common law partner over a 10 year period. A jury convicted the accused of a number of sexual offences. The accused appealed, arguing that the trial judge erred in admitting evidence of the accused's extrinsic misconduct and bad character, hearsay evidence of statements by the daughters and third parties, prior consistent statements and opinions of persons supportive of the daughters's credibility and the accused's guilt, and the accused's post-offence conduct and exercise of his right to silence. Should any of the above evidence be properly admissible, the accused argued that the trial judge failed to give a proper limiting instruction to the jury on the use of that evidence.

The Ontario Court of Appeal allowed the appeal and ordered a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See first Evidence - Topic 1130 ].

Criminal Law - Topic 4379.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence admissible for limited purpose - The accused allegedly sexually abused the four daughters of his common law partner over a 10 year period - A jury convicted him of a number of sexual offences - The accused appealed, arguing that the trial judge erred in admitting hearsay evidence by two witnesses and in failing to give a limiting instruction for the jury not to use the admissible parts of the evidence for the truth of its contents - The Ontario Court of Appeal stated that "the record discloses no hearsay analysis or any attempt to consider whether any parts of the evidence that may have been otherwise relevant, material and admissible should be excluded because their prejudicial effect outweighed their probative value" - The jury charge contained "nothing to warn jurors off use of the inadmissible evidence, and nothing to confine their application of the admissible parts of the evidence to legitimate purposes" - See paragraphs 101 to 109.

Criminal Law - Topic 4385.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding inadmissible evidence - [See Criminal Law - Topic 4379.2 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - A jury convicted the accused of sexual offences regarding the sexual abuse of the four daughters of his common law partner over a 10 year period - The trial judge erred in admitting evidence that was irrelevant and evidence of bad character, hearsay, double hearsay, opinion and inadmissible prior consistent statements - The judge's curative instructions were lacking and he did not properly instruct the jury as to the limited use of that evidence which was admissible for a limited purpose - The Ontario Court of Appeal declined to invoke the curative provisions of s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the numerous evidentiary errors - In ordering a new trial, the court stated that "the serious errors committed here can be saved harmless only if the evidence properly admitted was so overwhelming that no substantial wrong or miscarriage of justice has occurred. The evidence in this case permits of no such conclusion." - See paragraphs 161 to 171.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See both Criminal Law - Topic 5449 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour by accused - The Ontario Court of Appeal stated that "evidence of post-offence conduct is circumstance evidence which, like other circumstantial evidence, will be relevant and admissible according to whether it has some tendency, as a matter of logic, common sense and human experience, to help resolve the issues in the case ... Evidence of anything done by an accused after the commission of an offence is not subject to a special warning. As a general rule, it is for the jury to decide whether, on the basis of the evidence as a whole, evidence of an accused's post-offence conduct is related to the commission of an offence charged rather than to something else. It is also for the jury to decide how much, in any, weight it should assign to this evidence in its final decision." - See paragraphs 142 to 143.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The Ontario Court of Appeal stated that "evidence of an accused's extrinsic misconduct that shows only that she or he is the type of person likely to have committed the offence with which she or he is charged is inadmissible ... On the other hand, evidence that tends to show from extrinsic misconduct that an accused is a person of bad character, but that is also relevant and material, falls outside the general exclusionary rule, provided its probative value exceeds its prejudicial effect. ... Where evidence of extrinsic misconduct is admitted exceptionally in a criminal jury trial, the chief work of mid-trial and final instructions is prophylactic: to confine jury use of this evidence to its permitted purpose and to abjure prohibited reasoning ... These limiting instructions ... should contain three elements: i. a description of the evidence to which the instruction applies; ii. a positive instruction advising the jury about the use they may make of the evidence (the permitted use); and iii. a negative instruction directing the jury about the use they must not make of the evidence (prohibited use). ... Evidence of extrinsic misconduct may be admitted to demonstrate a system of violent control over others, thus to explain why abuse would occur and continue unabated and unreported ... The evidence may also be admitted as part of the narrative to provide context for other events, as well as to establish motive or animus ... In each case, the evidence of extrinsic misconduct must be relevant to some material issue, other than propensity, and be more probative of that issue than prejudicial through impermissible propensity reasoning. In a trial involving several complainants and counts, but without evidence of similar acts, a trial judge should instruct the jury not only that they are not entitled to use the evidence relating a particular count in deciding whether guilt has been proven on any other count, but also that they are not entitled to use the evidence relating to any other count to conclude that the accused is a person of bad character likely to have committed any offence charged" - See paragraphs 51 to 55.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The accused allegedly sexually abused the four daughters of his common law partner over a 10 year period - A jury convicted him of a number of sexual offences - The accused appealed, arguing that the trial judge erred in admitting evidence of his extrinsic misconduct and bad character and alternatively, if any of the evidence was properly admitted, the jury was not given a proper instruction on the limited use of that evidence - The Ontario Court of Appeal allowed the appeal and ordered a new trial, stating that "first, some but not all of the evidence to which objection is now taken should not have been admitted for any purpose. Second, the jurors did not receive adequate instructions about the limited use they could make of the evidence that was properly admitted, or any instructions about the impropriety of relying upon evidence that should not have been admitted" - There was evidence that the accused threatened suicide to manipulate the daughters into having sex with him, assaulted them, destroyed things in the home, threatened and abused their mother, spied on them in the shower and infringed their privacy in other ways - Much of this evidence was relevant and admissible, although "in a case of oath against oath, denial against allegation, the jurors heard that the [accused] had lied under oath and disobeyed court orders on at least two occasions" - The evidence created both moral and reasoning prejudice - Given the amount of evidence admitted about uncharged misconduct and other morally reprehensible behaviour over 10 years, there should have been "an instruction that jurors must not rely on the evidence on other counts or of other uncharged or disreputable conduct as proof that the [accused] was the sort of person who would or was likely to commit the offences charged" - See paragraphs 56 to 69.

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See both Criminal Law - Topic 5449 ].

Criminal Law - Topic 5464

Evidence and witnesses - Evidence of children - Out of court testimony - Videotaped statements - The Ontario Court of Appeal stated that "section 715.1 of the Criminal Code permits the reception of a videotaped statement of a complainant or witness under 18 at the time an offence is alleged to have been committed, provided certain statutory safeguards have been satisfied. The provision does not authorize the introduction of evidence that offends other admissibility rules. Editing may be required to ensure compliance with these rules. ... Section 715.1 permits introduction of evidence to the extent that the witness or complainant 'describes the acts complained of'. Reference to other conduct not encompassed by the indictment or to conversations that form no part of 'the acts complained of' are not rendered admissible by s. 715.1" - See paragraphs 146 to 147.

Evidence - Topic 1130

Relevant facts - Relevance and materiality - Relevance of evidence offered - Prior consistent statements - The Ontario Court of Appeal discussed the general exclusionary rule respecting prior consistent statements - The court stated that "the principal justifications underlying the exclusionary rule are that prior consistent statements lack probative value and constitute inadmissible hearsay if tendered to prove the truth of their contents. ... Among the recognized exceptions to the rule generally excluding prior consistent statements of a witness, are recent fabrication and narrative ... Where one party has made an allegation of recent fabrication in connection with a witness called by the opposite party, the opposite party can rebut the allegation by introducing other statements the witness made before the alleged fabrication arose, that are consistent with the witness' trial testimony ... The rebutting statements are not evidence of the truth of their contents. ... prior consistent statements may be admissible as part of the narrative ... The narrative exception does not permit use of the prior consistent statements to confirm the truthfulness of the sworn allegation, but does permit its use to show the fact and timing of a complaint, which may help the trier of fact to assess truthfulness or credibility ... the trial judge should instruct the jury about the limited value of this evidence. The instructions should make it plain that the jurors are not to consider the contents of the statements as proof that a crime has been committed" - See paragraphs 94 to 100.

Evidence - Topic 1130

Relevant facts - Relevance and materiality - Relevance of evidence offered - Prior consistent statements - A jury convicted the accused of sexual offences involving the sexual abuse of the four daughters of his common law partner over a 10 year period - On appeal, the accused challenged the trial judge's admission of prior consistent statements by the daughters - The Ontario Court of Appeal held that "the prior consistent statements of the complainants were admissible under the narrative exception to the exclusionary rule. They provided background to the story, chronological cohesion, and they eliminated gaps that could have diverted the jurors' attention from the central issue." - See paragraph 127.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - The Ontario Court of Appeal stated that "critical to the operation of the admissibility rule that excludes hearsay is the element of purpose. The purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when the statement is tendered to prove the truth of its contents that the exclusionary rule is implicated and the need to test the statement's reliability arises ... Out-of-court statements tendered to prove something other than the truth of their contents do not engage the exclusionary rule ... evidence of a witness' prior out-of-court statements tendered to prove the truth of their contents is hearsay and presumptively inadmissible." - See paragraphs 94 to 95.

Evidence - Topic 4511

Witnesses - Examination - General principles - Leading questions - The Ontario Court of Appeal stated that "as a general rule, the party who calls a witness is not permitted to ask the witness leading questions, in other words, questions that, by their terms, suggest the answer the witness should give. ... Flexibly applied, the rule cedes ground to expediency and permits a party to ask leading questions of its own witness on preliminary and non-controversial issues and, where necessary, to direct the witness to a particular event or subject-matter ... A trial judge also has a general discretion to allow leading questions whenever it appears necessary in the interests of justice" - See paragraph 93.

Cases Noticed:

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 50].

R. v. Hawkes (1915), 25 C.C.C. 29 (Alta. C.A.), refd to. [para. 50].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 50].

R. v. Largie (G.) et al. (2010), 266 O.A.C. 103; 101 O.R.(3d) 561; 2010 ONCA 548, refd to. [para. 50].

R. v. J.A. (1996), 95 O.A.C. 83; 112 C.C.C.(3d) 528 (C.A.), refd to. [para. 50].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 51].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 51].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 52].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 52].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 52].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), refd to. [para. 54].

R. v. P.S. (2000), 131 O.A.C. 282; 144 C.C.C.(3d) 120 (C.A.), refd to. [para. 54].

R. v. Trotta (M.) et al. (2004), 191 O.A.C. 322; 190 C.C.C.(3d) 199 (C.A.), revd. [2007] 3 S.C.R. 453; 369 N.R. 385; 232 O.A.C. 377, refd to. [para. 54].

R. v. B.M. (1998), 115 O.A.C. 117; 42 O.R.(3d) 1 (C.A.), refd to. [para. 55].

R. v. Rarru (H.S.) (No. 3), [1996] 2 S.C.R. 165; 197 N.R. 310; 77 B.C.A.C. 14; 126 W.A.C. 14, refd to. [para. 55].

R. v. L.K.W. (1999), 126 O.A.C. 39; 138 C.C.C.(3d) 449 (C.A.), refd to. [para. 55].

R. v. D.M. (1999), 121 O.A.C. 322; 136 C.C.C.(3d) 412 (C.A.), refd to. [para. 67].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 53 O.R.(3d) 417 (C.A.), refd to. [para. 93].

Reference Re R. v. Coffin, [1956] S.C.R. 191, refd to. [para. 93].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 94].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 94].

R. v. Kirkby (1985), 10 O.A.C. 356; 21 C.C.C.(3d) 31 (C.A.), refd to. [para. 94].

Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 95].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 96].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 96].

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1, refd to. [para. 96].

R. v. A.J.B., [1995] 2 S.C.R. 413; 182 N.R. 384; 133 Nfld. & P.E.I.R. 231; 413 A.P.R. 231, refd to. [para. 98].

R. v. G.C., [2006] O.A.C. Uned. 274 (C.A.), refd to. [para. 99].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 100].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 120].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 123].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 142].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 142].

R. v. Cornelius (D.) (2011), 283 O.A.C. 66; 2011 ONCA 551, refd to. [para. 142].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 146].

R. v. C.C.F., [1997] 3 S.C.R. 1183; 220 N.R. 362; 104 O.A.C. 321, refd to. [para. 146].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 14 O.R.(3d) 225 (C.A.), refd to. [para. 146].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 161].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285; 2008 SCC 57, refd to. [para. 161].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 161].

Authors and Works Noticed:

McCormick on Evidence (6th Ed. 2006), §52, p. 253 [para. 49].

Wigmore, John Henry, Evidence in Trials at Common Law (Tillers Rev. 1983), §18, p. 790 [para. 49].

Counsel:

John M. Rosen and Emily Lam, for the appellant;

Christine Bartlett-Hughes, for the respondent.

This appeal was heard on September 27, 2011, before O'Connor, A.C.J.O., Watt and Karakatsanis, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was released by Watt, J.A., on March 21, 2012.

Karakatsanis, J.A., did not participate in the judgment.