R. v. L.O., (2015) 338 O.A.C. 123 (CA)

• Judge: Doherty, Cronk and Hourigan, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 30, 2015
• Jurisdiction: Ontario
• Citations: (2015), 338 O.A.C. 123 (CA);2015 ONCA 394

R. v. L.O. (2015), 338 O.A.C. 123 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.008

Her Majesty the Queen (respondent) v. L.O. (appellant)

(C54459; 2015 ONCA 394)

Indexed As: R. v. L.O.

Ontario Court of Appeal

Doherty, Cronk and Hourigan, JJ.A.

June 4, 2015.

Summary:

The accused was convicted by judge and jury of sexual assault (count 1), sexual interference (count 2), invitation to touch for a sexual purpose (count 3), and possession of child pornography (count 4). He was sentenced to five years' imprisonment concurrent on counts 1 to 3. On count 4, he was sentenced to one year of consecutive imprisonment, reduced by 270 days for presentence custody, resulting in a sentence of 95 days consecutive to the five years imposed on counts 1 to 3. The accused appealed the convictions and sentence.

The Ontario Court of Appeal allowed the conviction appeal on counts 1 to 3, quashed those convictions and ordered a new trial. The court dismissed the conviction appeal on count 4 and varied the sentence to time served.

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 an order restricting publication under s. 486.4(1), s. 486.4(2), s. 486.4(3), s. 486.4(4), s. 486.6(1) or s. 486.6(2) of the Criminal Code and Maritime Law Book's editorial policy.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused was convicted by judge and jury of, inter alia, sexual assault, sexual interference and invitation to touch for a sexual purpose - The accused appealed, asserting that his trial counsel's decision not to the recall the victim (LF) for further cross-examination amounted to ineffective representation - During the trial, counsel had sought a mistrial based on LF's mid-trial disclosure that she told her mother that she had lied during her testimony - The trial judge declined to declare a mistrial, but ruled that counsel could re-call LF for a limited cross-examination on the statement that she made to her mother - Counsel declined to do so, stating that he was acting on the instructions of the accused - The Ontario Court of Appeal rejected the accused's argument - There was nothing in the fresh evidence filed by the accused to contradict his trial counsel's statement on the trial record - The court could not accept the allegation of ineffective assistance arising out of a tactical decision made on the express instructions of the client - The allegation was undercut by the absence of any evidence from the accused suggesting that his trial counsel misrepresented his instruction, or that there was some reason why the accused should now be allowed to resile from that instruction - See paragraphs 20 to 22.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused was convicted by judge and jury of, inter alia, sexual assault, sexual interference and invitation to touch for a sexual purpose - The accused appealed, claiming that his trial counsel had not provided effective assistance - He asserted that the material attached to the legal assistant's affidavit provided evidence that the victim was abused by a third party at some point before the alleged abuse by the accused - The Ontario Court of Appeal stated that there was no such evidence in the attachments to the affidavits - Assertions contained in a witness statement attached to the legal assistant's affidavit were not admissible for the truth of their contents - Nor did the extracts from the preliminary inquiry, which referred to allegations of prior abuse, provide any evidence that LF was actually abused - See paragraph 23.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused was convicted by judge and jury of, inter alia, sexual assault, sexual interference and invitation to touch for a sexual purpose - The accused appealed, asserting that there was evidence that the victim was sexually abused by a third party before the alleged abuse by the accused and, if there was no such evidence, his trial counsel's failure to investigate that possibility amounted to ineffective representation - The Ontario Court of Appeal rejected the argument - There was nothing in the fresh evidence filed by the accused that supported the claim - The extent to which his counsel might have investigated the possibility of third party abuse, and his reasons for not advancing that claim at trial, were not addressed in the fresh evidence - The accused had the burden of showing facts to support the claim - He could not meet that burden by asserting facts for which there was no evidence or by asking the court, in the absence of evidence, to draw inferences against his trial counsel's conduct of the defence - See paragraphs 23 to 25.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused was convicted by judge and jury of, inter alia, sexual assault, sexual interference and invitation to touch for a sexual purpose - The accused appealed, claiming that his trial counsel provided ineffective assistance by failing to pursue the argument that the "adult" language used by the victim demonstrated that her allegations had been tainted by "suggestive questioning" - The Ontario Court of Appeal rejected the argument, stating that "In almost every trial, there are several possible arguments that could be made. Counsel must decide what arguments to put forward. That decision involves the exercise of professional judgment. Allegations of ineffective assistance are not a forum for second guessing judgment calls made at trial. The argument appellate counsel now says should have been made, was in fact made to some extent by trial counsel. Perhaps it could have been given more emphasis, although the cogency of the argument is debatable. Whatever the merits of this argument, trial counsel's decision to press other arguments does not amount to ineffective assistance." - See paragraph 27.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - The accused was convicted by judge and jury of sexual assault, sexual interference, invitation to touch for a sexual purpose, and possession of child pornography - The accused appealed, asserting that his trial counsel understated the reasonable doubt standard and the trial judge failed to correct the misstatement in her directions - The Ontario Court of Appeal rejected the assertion, stating that "Trial counsel's explanation of the reasonable doubt standard to the jury may or may not have understated that standard. The trial judge's instruction correctly described the standard in language that has been the accepted reasonable doubt instruction for over 15 years ... The trial judge told the jury to take their legal instructions from her and defence counsel qualified his description of the law with the same caution. I have no doubt the jury would have acted on the trial judge's explanation of reasonable doubt. That explanation would not have misled the jury." - See paragraphs 28 and 29.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions on evidence generally - The accused was charged with sexual assault (count 1), sexual interference (count 2), invitation to touch for a sexual purpose (count 3) and possession of child pornography (count 4) - At trial, the Crown proposed to show the jury the various images and videos found on the accused's computers and the CDs seized from his apartment - The accused opposed the proposal - The trial judge acknowledged the relevance of the content of the material to the child pornography charge, and expressed concern that the jury might use the material as evidence of the accused's guilt on the other charges - She concluded that the prejudice of viewing such inflammatory material outweighed the probative value - The judge ruled that the jury would not be allowed to view the material, but permitted the investigating officer to testify and describe the contents of material - The officer did so in considerable and explicit detail, including describing the reactions of the children who were being abused - The accused was convicted on all counts - He appealed, asserting that the judge failed to adequately instruct the jury that the evidence of the accused's possession of child pornography should be considered only on count 4 - The Ontario Court of Appeal allowed the appeal and ordered a new trial on counts 1 to 3 - The evidence's admission through the officer posed two significant dangers to the accused's right to a fair trial on counts 1 to 3: (1) moral prejudice flowing from the material's nature; and (2) reasoning prejudice - The potential prejudice was very real and potentially insurmountable - Only a clear, sharp and emphatic instruction to the jury that it could not use the evidence in any way in determining culpability on counts 1 to 3 could have overcome the potential prejudice - The judge's instruction to consider each count separately, and her subsequent instructions that followed that approach did not provide an adequate safeguard against the evidence's potential misuse - See paragraphs 75 to 78.

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - The accused was convicted by judge and jury of, inter alia, sexual assault, sexual interference and invitation to touch for a sexual purpose - The accused appealed, asserting that the trial judge should have told the jury that, to the extent that the prior statements of the victim (LF) were consistent with her testimony, those prior statements could not be used to "bolster her credibility" - The Ontario Court of Appeal rejected the argument - The trial judge correctly told the jury that prior inconsistencies were relevant to the reliability of LF's testimony and to her credibility - She correctly told the jury that the significance of inconsistencies in the assessment of LF's reliability and credibility could only be determined after an examination of the nature and extent of those inconsistencies - The jury had to consider the entirety of the evidence relating to LF's various statements, including the consistencies, in deciding the impact of any inconsistencies on her credibility and reliability - To the extent that LF's statements were consistent, especially on the central features of the allegations, that consistency could counter, or at least mitigate, the defence claim that LF was not credible or reliable because of her many prior inconsistent statements - See paragraphs to 31 to 36.

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - The accused was convicted by judge and jury of, inter alia, sexual assault, sexual interference and invitation to touch for a sexual purpose - The accused appealed, asserting that the trial judge erred by not telling the jury that it could not infer the truth of the allegations from the victim's (LF's) repetition of the allegations, and that it could not use LF's prior consistent statement's to confirm or corroborate her testimony - The Ontario Court of Appeal noted that the trial judge did not give either instruction in her charge and had not been requested to do so - The instructions could have been given and, in a perfect jury charge, would have been given - Perfection was not the standard - The failure to give the instructions did not constitute a legal error - The defence, as it was entitled to do, vigorously attacked LF's credibility and reliability using her prior statements - The Crown, as it was entitled to do, attempted to rebut those attacks with the contention that the statements were not inconsistent on material matters - The trial judge's instructions reflected the manner in which those statements had been placed before the jury - Considered in that light, the instructions, even absent the alleged non-directions, adequately prepared the jury to properly assess LF's evidence - Defence counsel's failure to object at trial supported the conclusion that the judge's instructions properly captured the significance of the prior statements to the case - See paragraphs 37 to 41.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See both Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 4375.4

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior statements - The accused was convicted by judge and jury of, inter alia, sexual assault, sexual interference and invitation to touch for a sexual purpose - The accused appealed, asserting that the trial judge, when he was reviewing the evidence relevant to each count, erred by not repeating for a third time her instructions that the victim's (LF's) out-of-court statement was inadmissible for its truth - The trial judge gave the instruction during LF's cross-examination and in her final instructions while charging the jury on the prior inconsistent statements generally - The Ontario Court of Appeal noted that the trial judge had not been asked to repeat the instruction when reviewing the evidence relevant to each count - A further repetition was not essential to an adequate jury charge - LF's prior statements were repeatedly presented to the jury by counsel and the judge as central to the assessment of the reliability of her in-court testimony - No one suggested the statements provided proof of the alleged offences - The judge's two limiting instructions were sufficient to avoid the risk that the jury would misuse LF's prior out-of-court statements - See paragraphs 46 to 48.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See second Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - [See all Civil Rights - Topic 3158 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - The accused was charged with sexual assault (count 1), sexual interference (count 2), invitation to touch for a sexual purpose (count 3) and possession of child pornography (count 4) - At trial, the Crown proposed to show the jury the various images and videos found on the accused's computers and the CDs seized from his apartment - The trial judge acknowledged the relevance of the material to count 4, but was concerned that the jury might use it as evidence of guilt on the other charges - She concluded that the prejudice of viewing such inflammatory material outweighed the probative value - However, the judge permitted the investigating officer to testify and describe the contents of material - The officer did so in considerable and explicit detail - The accused was convicted on all counts - He appealed, asserting that the judge failed to adequately instruct the jury that the evidence of the accused's possession of child pornography should be considered only on count 4 - The Crown asserted that the evidence was admissible on counts 1 to 3 as evidence of motive - The Ontario Court of Appeal stated that for the Crown's assertion to succeed, three inferences had to be available on the totality of the evidence: (1) the accused had an interest in watching sexual activity involving adults and young children; (2) he therefore had an interest in engaging in sexual activity with young children; and (3) he therefore sexually abused the victim as alleged in counts 1 to 3 - The correlation assumed by the second inference, and its nature, were beyond the experience and knowledge of the normal judge or juror - Such matters fell within the expertise of social scientists - If the Crown wanted to rely on that inference, it should have lead proper expert evidence to support the inference's availability - Without the second inference, the third inference could not be drawn - See paragraphs 49 to 68.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - The accused was charged with sexual assault (count 1), sexual interference (count 2), invitation to touch for a sexual purpose (count 3) and possession of child pornography (count 4) - At trial, the Crown proposed to show the jury the various images and videos found on the accused's computers and the CDs seized from his apartment - The trial judge acknowledged the relevance of the material to count 4, but was concerned that the jury might use it as evidence of guilt on the other charges - She concluded that the prejudice of viewing such inflammatory material outweighed the probative value - However, the judge permitted the investigating officer to testify and describe the contents of material - The officer did so in considerable and explicit detail - The accused was convicted on all counts - He appealed, asserting that the judge failed to adequately instruct the jury that the evidence of the accused's possession of child pornography should be considered only on count 4 - The Crown asserted that the evidence was admissible on counts 1 to 3 as evidence of motive - The Ontario Court of Appeal stated that for the Crown's assertion to succeed, three inferences had to be available on the totality of the evidence: (1) the accused had an interest in watching sexual activity involving adults and young children; (2) he therefore had an interest in engaging in sexual activity with young children; and (3) he therefore sexually abused the victim as alleged in counts 1 to 3 - Even if the evidence of possession of child pornography showed a general propensity to engage in sexual activity with children, such that it supported the inference that the accused had engaged or would engage in sexual activity with children, the evidence did not say anything about what the accused did on the specific occasions alleged by the victim here - See paragraphs 69 to 74.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 5464

Evidence and witnesses - Evidence of children - Out of court testimony - Videotaped statements - The accused was convicted by judge and jury of sexual assault, sexual interference, invitation to touch for a sexual purpose, and possession of child pornography - The accused appealed, asserting that the trial judge erred in instructing the jury that, in assessing the reliability of the video recorded statement made by the victim (LF), the jury could consider "The similarities and differences between the videotape and [L.F.'s] evidence at trial. Were they similar or different, in important or minor details? Is there an explanation?" - The Ontario Court of Appeal rejected the argument - The argument misunderstood the effect of s. 715.1 of the Criminal Code, under which the statement was admitted - Where a child's video recorded statement was admitted under s. 715.1, it became part of the child's in-court testimony - It fell to the jury to assess the entirety of LF's evidence, which included the statement and the in-court testimony, and consider whether any consistencies or inconsistences within the entirety of her testimony shed light on the reliability of that testimony - To treat the video statement solely as a prior statement distinct from her testimony would defeat s. 715.1's purpose - See paragraphs 41 to 45.

Criminal Law - Topic 5494

Evidence and witnesses - Motive or design - Admissibility - [See second and third Criminal Law - Topic 5204.3 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - In sentencing the accused for possession of child pornography, the sentencing judge gave the accused 2:1 credit for 71 days served after his arrest and before his release on bail (142 days' credit) and 1:1 credit for the 128 days he served between his conviction and sentence - The reasons for sentence did not address the different treatment of the two time periods - The Crown and the accused agreed that the accused was entitled to 2:1 credit for the entire period of presentence custody - The Ontario Court of Appeal gave the accused an additional 128 days credit for time served - See paragraphs 79 and 80.

Evidence - Topic 2264

Special modes of proof - Judicial notice - Particular matters - Human conduct - General - [See second and third Criminal Law - Topic 5204.3 ].

Evidence - Topic 7059

Opinion evidence - Expert evidence - Particular matters - Behavioural sciences - [See second Criminal Law - Topic 5204.3 ].

Practice - Topic 3603

Evidence - Affidavits - General - Contents of - Attachments - [See second Civil Rights - Topic 3158 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 4].

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 8].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), leave to appeal refused (1997), 208 N.R. 79; 99 O.A.C. 79 (S.C.C.), refd to. [para. 25].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 25].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 29].

R. v. J.E.F. (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 32].

R. v. G.C., [2006] O.A.C. Uned. 274 (C.A.), refd to. [para. 32].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 32].

R. v. M.A., [2006] O.A.C. Uned. 529; 214 C.C.C.(3d) 38 (C.A.), refd to. [para. 38].

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; 2009 SCC 27, refd to. [para. 38].

R. v. Araya (N.) (2015), 468 N.R. 114; 329 O.A.C. 1; 17 C.R.(7th) 252; 2015 SCC 11, refd to. [para. 40].

R. v. C.C.F., [1997] 3 S.C.R. 1183; 220 N.R. 362; 104 O.A.C. 321, refd to. [para. 43].

R. v. C.C.F., [1993] O.J. No. 4241 (C.J.), refd to. [para. 45].

R. v. Malone (1984), 2 O.A.C. 321; 11 C.C.C.(3d) 34 (C.A.), leave to appeal refused (1984), 55 N.R. 160; 3 O.A.C. 319 (S.C.C.), refd to. [para. 63].

R. v. Salah (G.) et al. (2015), 328 O.A.C. 333; 319 C.C.C.(3d) 373; 2015 ONCA 23, refd to. [para. 63].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 67].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants (2015), 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1; 2015 SCC 23, refd to. [para. 67].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 69].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 69].

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. 69].

R. v. Johnson (K.) (2010), 267 O.A.C. 201; 262 C.C.C.(3d) 404; 2010 ONCA 646, refd to. [para. 70].

R. v. W.B. (2000), 134 O.A.C. 1; 145 C.C.C.(3d) 449 (C.A.), refd to. [para. 73].

R. v. C.J. (2011), 307 N.S.R.(2d) 200; 975 A.P.R. 200; 276 C.C.C.(3d) 454; 2011 NSCA 77, refd to. [para. 73].

R. v. Thompson, [1918] A.C. 221 (H.L.), refd to. [para. 74].

Authors and Works Noticed:

Paciocco, David, The Perils and Potential of Prior Consistent Statements: Let's Get It Right (2013), 17 Can. Crim. L. Rev. 188, p. 199 [para. 36].

Paciocco, David, and Stuesser, Lee, The Law of Evidence (7th Ed. 2015), p. 32 [para. 65].

Watt, David, Manual of Criminal Jury Instructions (2nd Ed. 2015), p. 373 [para. 42].

Wigmore, John Henry, Evidence in Trials at Common Law (1983), vol. 1A, paras. 117 to 118 [para. 63].

Counsel:

Paul J.I. Alexander, for the appellant;

Alex Hrybinsky, for the respondent.

This appeal was heard on March 30, 2015, by Doherty, Cronk and Hourigan, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., released the following judgment for the court on June 4, 2015.