R. v. A.K. and N.K., (1999) 125 O.A.C. 1 (CA)

• Judge: McMurtry, C.J.O., Charron and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 13, 1999
• Jurisdiction: Ontario
• Citations: (1999), 125 O.A.C. 1 (CA);1999 CanLII 3793 (NS CA);1999 CanLII 3793 (ON CA);45 OR (3d) 641;176 DLR (4th) 665;137 CCC (3d) 225;27 CR (5th) 226;[1999] CarswellOnt 2806;[1999] OJ No 3280 (QL);125 OAC 1;43 WCB (2d) 349;67 CRR (2d) 189

R. v. A.K. (1999), 125 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. SE.026

Her Majesty The Queen (respondent) v. A.K. and N.K. (appellants)

(C21487; C21488)

Indexed As: R. v. A.K. and N.K.

Ontario Court of Appeal

McMurtry, C.J.O., Charron and Moldaver, JJ.A.

September 13, 1999.

Summary:

The accused were convicted by judge and jury of various sexual offences against fe­male relatives who were then between the ages of four and 12. They were each sen­tenced to a term of five years' imprisonment. The accused appealed against their convic­tions and sought leave to appeal their sen­tences.

The Ontario Court of Appeal, Moldaver, J.A., concurring in the result, allowed the conviction appeal and ordered a new trial.

Criminal Law - Topic 673

Sexual offences, public morals and disor­derly conduct - Sexual offences, rape or sexual assault - Jury charge - The accused were convicted by judge and jury of vari­ous sexual offences involving female rela­tives who were then between the ages of four and 12 - The accused appealed ar­guing, inter alia, that the trial judge erred when instructing the jury regarding the use that could be made of expert opinion evi­dence that was introduced - The Ontario Court of Appeal reviewed the instruction and agreed - The court stated that the instruction constituted misdirection insofar as it could have suggested that opinions other than those offered by the expert would be "inaccurate" or constitute "myths" - A new trial was ordered - See paragraphs 140 to 143.

Criminal Law - Topic 675

Sexual offences, public morals and disor­derly conduct - Sexual offences, rape or sexual assault - Evidence and proof - [See both Evidence - Topic 7052 ].

Criminal Law - Topic 689.1

Sexual offences, public morals and disor­derly conduct - Sexual offences - Evidence - Post-assault conduct of complainant - [See first Evidence - Topic 7052 ].

Criminal Law - Topic 4312

Procedure - Jury - Impartiality - [See all Criminal Law - Topic 4316 ].

Criminal Law - Topic 4312

Procedure - Jury - Impartiality - The On­tario Court of Appeal noted that in Cana­da, jurors were presumed to be indifferent or impartial - "This presumption does not mean that we, as Canadians, expect jurors to come to the task without any knowledge and without any life experience. It is inevi­table in any case that each juror will bring his or her own feelings, opinions and beliefs to the deliberations. This fact alone does not translate into partiality. Candi­dates for jury duty are not, under our system, routinely subjected to questioning on those feelings, opinions and beliefs in an attempt to uncover some possible source of partiality. Such an approach would constitute an unwarranted invasion of their privacy interests" - See paragraph 50.

Criminal Law - Topic 4313

Procedure - Jury - Questioning of prospec­tive jurors - [See all Criminal Law - Topic 4316 ].

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The accused were convicted by judge and jury of various sexual offences involving female relatives when they were between the ages of four and 12 - The accused appealed, arguing that they should have been allowed to challenge each juror for cause on the ground that the juror, by reason of the nature of the offence, was not indifferent between the Crown and the accused (Criminal Code, s. 638(1)(b)) - The Ontario Court of Appeal canvassed the law regarding challenging jurors for cause and rejected the accused's argument - See paragraphs 1 to 56.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - Section 638(1)(b) of the Criminal Code permitted an accused to challenge potential jurors for cause on the ground of partiality - In reviewing this section, the Ontario Court of Appeal noted that this right, although neither exceptional or extraor­dinary, was not automatic - Rather, an accused could only challenge for cause upon establishing that there was a realistic potential for juror partiality - See para­graph 28.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The accused appealed their sexual offence convictions on the ground, inter alia, that the trial judge erred in failing to take judicial notice of the fact that allegations of sexual abuse, particularly regarding children, gave rise to such strong feelings, opinions and beliefs in the general popula­tion that there was a real risk that some prospective jurors would decide the case based on their own views rather than the evidence - In rejecting this ground of appeal, the Ontario Court of Appeal dis­cussed the doctrine of judicial notice and when it could be used in the context of jury challenges for cause - See paragraphs 29 to 46.

Criminal Law - Topic 4365

Procedure - Charge or directions to jury - Directions regarding expert evidence - [See Criminal Law - Topic 673 ].

Criminal Law - Topic 4382

Procedure - Charge or directions to jury - Misdirection - What constitutes - [See Criminal Law - Topic 673 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials -Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 673 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials -Grounds - Admission of prejudicial evi­dence - [See first Evidence - Topic 7052 ].

Criminal Law - Topic 4954

Appeals - Indictable offences - New trials -Grounds - Error by trial judge on jury selection - [See first and third Criminal Law - Topic 4316 ].

Criminal Law - Topic 5202

Evidence and witnesses - General - Admis­sibility - Whether relevant and material - [See third Evidence - Topic 7000 and first Evidence - Topic 7052 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See third Evidence - Topic 7000 and first Evidence - Topic 7052 ].

Criminal Law - Topic 5529

Evidence and witnesses - Testimony re­specting the victim - Behaviour of victim -[See both Evidence - Topic 7052 ].

Evidence - Topic 465

Functions of counsel, judge and jury - Acceptance of opinion evidence - [See all Evidence - Topic 7000 and both Evidence - Topic 7052 ].

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See third Evidence - Topic 7000 and first Evidence - Topic 7052 ].

Evidence - Topic 2206

Special modes of proof - Judicial notice - General principles - Criminal cases - [See third Criminal Law - Topic 4316 ].

Evidence - Topic 2265

Special modes of proof - Judicial notice - Particular matters - Human conduct - Reaction of others - [See third Criminal Law - Topic 4316 ].

Evidence - Topic 2265.1

Special modes of proof - Judicial notice - Particular matters - Human conduct - Children - [See third Criminal Law - Topic 4316 ].

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - In discussing the nature and reason for the "opinion rule" the Ontario Court of Appeal stated opinion evidence was generally inadmissible - It was "gener­ally excluded because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issues in the case. Hence, ... it is only when the trier of fact is unable to form his or her own conclusions without help that an exception to the opinion rule may be made and expert opinion evidence may be admitted. It is the expert's precise function to provide the trier of fact with a ready-made inference from the facts which the judge and jury, due to the nature of the facts, are unable to formulate themselves" -See paragraph 71.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - The Ontario Court of Appeal reviewed the law relating to opinion evi­dence - See paragraphs 55 to 143.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - The Ontario Court of Appeal stated that opinion evidence was generally inadmissible unless it met the following four criteria: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a proper­ly qualified expert - The court further stated that a consideration of the first two criteria, relevance and necessity required a balancing of the probative value of the proposed evidence against its potential prejudicial effect - The proposed evidence would only be admissible if its probative value exceeded its prejudicial effect - The third criterion involved a consideration of the applicable rules of evidence - Even if the proposed evidence was sufficiently probative to warrant admission, it could be subject to some other exclusionary rule and further inquiry may be required - Finally, the last criterion required that expert opin­ion evidence be adduced solely through a properly qualified expert - See paragraphs 74 and 75.

Evidence - Topic 7052

Opinion evidence - Expert evidence - Particular matters - Child abuse - The accused were convicted by judge and jury of various sexual offences involving fe­male relatives (then between the ages of four and 12) - At trial, a voir dire was held to determine whether the Crown could call a social worker with extensive experience in child sexual abuse to give opinion evi­dence on the behaviour of sexually abused children - The trial judge held that the expert was restricted to giving expert evidence regarding the following behaviour of the complainants: delay in discussing the abuse, inconsistent disclosures, faulty memory about alleged occurrences of sexual abuse and peripheral events, re­peated involvement with the alleged abusers and lack of detection by persons close to the complainants - The accused appealed asserting, inter alia, that the evidence given at trial far exceeded the permissable grounds allowed by the trial judge - The Ontario Court of Appeal agreed - A new trial was ordered because the prejudicial effect of the evidence far outweighed its probative value - See para­graphs 57 to 139.

Evidence - Topic 7052

Opinion evidence - Expert evidence - Particular matters - Child abuse - The Ontario Court of Appeal considered the issue of when expert evidence would be admissible to establish that certain be­haviourial characteristics were common among child victims of sexual abuse - See paragraphs 57 to 139.

Cases Noticed:

R. v. Betker (A.) (1997), 100 O.A.C. 81; 115 C.C.C.(3d) 421 (C.A.), leave to appeal refused (1998), 227 N.R. 153; 113 O.A.C. 399; 121 C.C.C.(3d) 6 (S.C.C.), refd to. [para. 3].

R. v. Williams (V.D.) (1998), 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1; 124 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 3].

R. v. Textor (E.) (1993), 75 O.A.C. 396 (C.A.), refd to. [para. 10].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), leave to appeal refused, [1994] 1 S.C.R. x; 175 N.R. 321; 72 O.A.C. 159; 28 C.R.(4th) 403, refd to. [para. 18].

R. v. Find (K.) (1999), 126 O.A.C. 261 (C.A.), refd to. [para. 20, foot­note 3].

R. v. V.P. (1999), 124 O.A.C. 54 (C.A.), refd to. [para. 20, footnote 3].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161; 63 C.C.C.(3d) 193, refd to. [para. 28].

R. v. Hubbert, [1977] 2 S.C.R. 267; 15 N.R. 139; 33 C.C.C.(2d) 207, refd to. [para. 41].

R. v. Hillis, [1996] O.J. No. 2739 (Gen. Div.), refd to. [para. 44].

State v. Marcus (1948), 34 N.W.2d 178 (Iowa Sup. Ct.), refd to. [para. 52, foot­note 7].

Com. v. Myers (1988), 545 A.2d 309 (Pa. Super.), refd to. [para. 52, footnote 7].

State v. Walker (1990), 795 S.W.2d 522 (Mo. App.), refd to. [para. 52, footnote 7].

Tenon v. State (1989), 545 So.2d 382 (Dist. Ct. App.), refd to. [para. 52, foot­note 7].

State v. Bebermeyer (1987), 743 S.W.2d 516 (Mo. App.), refd to. [para. 52, foot­note 7].

State v. Evans (1985), 701 S.W.2d 569 (Mo. App.), refd to. [para. 52, footnote 7].

United States v. Sumler, [1998] U.S. App. Lexis 13714, refd to. [para. 52, footnote 7].

State v. House (1995), 456 S.E.2d 292 (N.C. Sup. Ct.), refd to. [para. 52, foot­note 7].

Nichols v. State (1993), 435 S.E.2d 502 (Ga. Ct. App.), refd to. [para. 52, foot­note 7].

Wellons v. State (1995), 463 S.E.2d 868 (Ga. Sup. Ct.), refd to. [para. 52, foot­note 7].

State v. Lewis (1984), 452 So.2d 720 (La. Ct. App. 4th Cir.), refd to. [para. 52, footnote 7].

State v. Jones (1993), 584 S.W.2d 60 (Mo. App.), refd to. [para. 52, footnote 7].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; 138 D.L.R.(3d) 202; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 29 C.R.(3d) 193; 68 C.C.C.(2d) 394, refd to. [para. 71].

R. v. McIntosh (O.) and McCarthy (P.) (1997), 102 O.A.C. 210; 117 C.C.C.(3d) 385 (C.A.), refd to. [paras. 73, 87, foot­note 8].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402; 114 D.L.R.(4th) 419; 29 C.R.(4th) 243, refd to. [para. 74].

R. v. Chisholm (G.) (1997), 27 O.T.C. 356; 8 C.R.(5th) 21 (Gen. Div.), refd to. [para. 76].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481; 60 C.R.(3d) 1, refd to. [para. 85, footnote 10].

R. v. Bourguignon, [1991] O.J. No. 2670 (Gen. Div.), refd to. [para. 85, footnote 11].

R. v. J.E.T., [1994] O.J. No. 3067 (Gen. Div.), refd to. [para. 87].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), refd to. [para. 93].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193, refd to. [para. 95].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 638(1)(b) [para. 24].

Authors and Works Noticed:

Chapman, S., Challenges for Cause Based on Non-Impartiality, The Sexual Of­fences Law Report (1994), generally [para. 16, footnote 2].

Cooper, The ABC's of Challenge for Cause, [1994] Crim. L.Q. 62, generally [para. 16, footnote 2].

Freedman, Jonathan L., and Doob, An­thony N., Vidmar's Generic Prejudice Article: Misleading Notions, Anecdotal Statistics, Unwarranted Conclusions, generally [para. 44].

McCormick, Charles Tilford, Handbook on the Law of Evidence (3rd Ed. 1984), p. 544 [para. 79, footnote 9].

Paciocco, David, Challenges for Cause in Jury Selection after R. v. Parks: Prac­ticalities and Limitations, Paper given at Canadian Bar Association Conference on Recent Issues and Developments in Criminal Law (February 11, 1995), gen­erally [paras. 16, 174, footnote 2].

Paciocco, David, The Evidence of Child­ren: Testing the Rules Against What We Know (1996), 21 Queen's L.J. 345, p. 387 [para. 100].

Skurka, Sex Abuse Cases II, C.L.A. Edu­cation Programme (November 1994), generally [para. 16, footnote 2].

Tanovich, Rethinking Jury Selection (1994), 30 C.R.(4th) 310, generally [para. 16, footnote 2].

Vidmar, Generic Prejudice and the Pre­sumption of Guilt in Sex Abuse Trials (1997), 21 Law and Human Behaviour 5, p. 18 [para. 175, footnote 12].

Webster's Ninth New Collegiate Dic­tionary [para. 126].

Counsel:

James C. Fleming, for the appellant, A.K.;

Timothy E. Breen, for the appellant, N.K.;

Susan L. Reid, Ian R. Smith and Gillian Roberts, for the Crown.

This appeal was heard on April 6, 7, 8 and 9, 1999, before McMurtry, C.J.O., Charron and Moldaver, JJ.A., of the Ontario Court of Appeal. The following judgment was re­leased on September 13, 1999, including the following opinions:

Charron, J.A. (McMurtry, C.J.O., con­curring) - see paragraphs 1 to 154;

Moldaver, J.A., concurring in the result - see paragraphs 155 to 194.