R. v. M.T.,

• Jurisdiction: Ontario
• Judge: Dambrot,Feldman,Watt
• Neutral Citation: 2012 ONCA 511
• Subject Matter: EVIDENCE,CRIMINAL LAW
• Citation: (2012), 294 O.A.C. 111 (CA),2012 ONCA 511,294 OAC 111,(2012), 294 OAC 111 (CA),294 O.A.C. 111
• Date: 25 January 2012
• Court: Court of Appeal (Ontario)

R. v. M.T. (2012), 294 O.A.C. 111 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.054

Her Majesty the Queen (respondent) v. M.T. (appellant)

(C50705; 2012 ONCA 511)

Indexed As: R. v. M.T.

Ontario Court of Appeal

Feldman and Watt, JJ.A. and Dambrot, J.(ad hoc)

July 25, 2012.

Summary:

A jury convicted M.T. of sexual assault, sexual interference and invitation to sexual touching. The complainant was M.T.'s niece, E.G. M.T. appealed.

The Ontario Court of Appeal dismissed the appeal.

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 673

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Jury charge or directions - [See Criminal Law - Topic 4375.3 and Criminal Law - Topic 5449 ].

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual conduct or character of complainant - The Ontario Court of Appeal discussed the governing principles regarding s. 276 of the Criminal Code - Section 276(1) excluded evidence that the complainant had "engaged in sexual activity" with another person at another time and place if it was tendered for either purpose proscribed by the subsection - The exclusionary rule in s. 276(2) rejected all evidence of other sexual activity unless the evidence satisfied each of the requirements of the inclusionary exception - The exceptional admission of evidence of other sexual activity under s. 276(2) required satisfaction of the three conditions precedent: (i) be of specific instances of sexual activity; (ii) be relevant to an issue at trial; and (iii) had significant probative value that was not substantially outweighed by the danger of prejudice to the proper administrative of justice - The balancing of probative value and prejudicial effect was calibrated differently than in the general exclusionary discretion or the more circumscribed discretion to exclude otherwise admissible defence evidence - The addition of the terms "significant", as descriptive of the probative value, and "substantially", as the extent to which significant probative value had to predominate over "prejudice to the proper administration of justice", appeared to require a more nuanced or qualitative assessment of the competing interests - These interests were "incommensurables" - Probative value had to do with the capacity of the evidence to establish the fact of which it was offered in proof - Prejudicial effect related to trial fairness - See paragraphs 29 to 43.

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual conduct or character of complainant - A jury convicted M.T. of sexual assault, sexual interference and invitation to sexual touching - The complainant was M.T.'s niece, E.G. - On appeal, M.T. asserted, inter alia, that the trial judge had erred in failing to permit cross-examination of E.G. under s. 276 of the Criminal Code about allegations of similar sexual abuse by E.G.'s biological father - The Ontario Court of Appeal dismissed the appeal - The admissibility rule in s. 276(1) did not exclude all evidence of extrinsic sexual activity of a complainant - What was prohibited was the use of evidence of extrinsic sexual activity to support either or both of the specific, illegitimate inferences described in the section: (1) that the complainant was more likely to have consented to the conduct charged, or (2) that the complainant was less worthy of belief - Essentially, M.T.'s argument was that a complainant who accused two persons of sexual impropriety occurring at different times and in different circumstances was more likely to be lying about either or both than a complainant who accused only one person - This reasoning brushed "uncomfortably close to" what was proscribed and countermanded by binding precedent - Further, even without the statutory framework of s. 276, this evidence was inadmissible because it lacked relevance where M.T.'s defence was that the alleged activity never took place - Finally, the admission of proposed evidence was a matter that involved a fact-sensitive analysis by the trial judge - His exercise of discretion was entitled to substantial deference - See paragraphs 44 to 54.

Criminal Law - Topic 4336.5

Procedure - Jury - The law - Questions by jury - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - A jury convicted M.T. of sexual assault, sexual interference and invitation to sexual touching - The complainant was M.T.'s niece, E.G. - On appeal, M.T. asserted, inter alia, that the trial judge had erred in failing to fully answer a question from the jury about the standard of proof and discouraging jurors from asking further questions about the same or other subjects - The Ontario Court of Appeal dismissed the appeal - The court rejected M.T.'s assertion that the judge should have included an instruction based on R. v. D.W. (SCC 1991) - The jury had a written copy of the charge - The five pages of instructions on the onus and standard of proof included the D.W. formula - The jury's question did not refer to any portion of the written instructions or expressly raise any complaint about their adequacy or the jurors' understanding of them - The crucial message was delivered - The jury could not have been under a misapprehension about the correct burden and standard of proof - The failure to include a re-instruction on D.W. was not fatal to the validity of the conviction in the circumstances of this case - Further, though the trial judge did not invite further questions from the jury, he did attempt to provide some guidance above and beyond what he had already given - He gave a new description of the burden of proof and emphasized that it rested with the Crown to satisfy that burden beyond a reasonable doubt - Though it would have been preferable for the trial judge to have provided a more fulsome and considered response, the court was not persuaded that his response left open the possibility that the jury's verdict was cumbered by a misunderstanding of the burden or standard of proof - See paragraphs 102 to 134.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - A jury convicted M.T. of sexual assault, sexual interference and invitation to sexual touching - The complainant was M.T.'s niece, E.G. - On appeal, M.T. asserted, inter alia, that the trial judge had erred in failing to instruct the jury that they could not use the fact or content of E.G.'s initial disclosure of the allegations to her mother (the prior complaint) as evidence of the truth of its contents - The Ontario Court of Appeal dismissed the appeal - Where evidence of prior consistent statements was received as narrative, the trial judge was to instruct the jurors that the only use they could make of the evidence was to assist them in assessing the complainant's credibility, in certain circumstances, particularly where the complainant was a child, and that they were not to use the statements as evidence of the truth of their contents - The trial judge's failure to do so was a harmless error here - The jurors heard little of the prior complaint's substance - To the extent that any details were solicited, that was done so by trial counsel for M.T. - Neither the addresses of counsel nor the final instructions of the trial judge repeated the meagre details of the prior complaint - Finally, M.T.'s very experienced trial counsel did not ask for, or object to the admission of, any limiting instruction about the narrative evidence - See paragraphs 55 to 70.

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - A jury convicted M.T. of sexual assault, sexual interference and invitation to sexual touching - The complainant was M.T.'s niece, E.G. - On appeal, M.T. asserted, inter alia, that the trial judge had erred in instructing the jury that they could find that the evidence of M.T.'s son, J.T., who testified for the defence, was "scripted" - In his charge, the trial judge stated, "It is for you to determine whether [J.T.'s] testimony was a credible and reliable expression of his own recollection, or whether it was, for example, the scripted result of an interest in the outcome" - The Ontario Court of Appeal dismissed the appeal - The challenged instruction related to a factor that the jurors could consider in assessing J.T.'s credibility and his evidence's reliability - The remarkable similarity between the evidence of father and son was a relevant factor - That J.T.'s evidence was "scripted" was an inference that the jurors could draw - Further, the instruction did not direct the jurors to find that J.T.'s evidence was "scripted" - It did not suggest that M.T. was the "script" writer - Nor did it invite the jurors to draw an adverse inference against M.T. to supplement the case for the Crown - Despite his early complaints about the use of the term "scripted", trial counsel had not objected to the manner in which the issue was left in the jury's hands - See paragraphs 91 to 101.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions regarding character or credibility of accused - [See Criminal Law - Topic 5449 ].

Criminal Law - Topic 4391

Procedure - Charge or directions - Jury or judge alone - Redirection or further direction - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4375.3 , Criminal Law - Topic 4377.1 and Criminal Law - Topic 5449 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 4375.3 and Criminal Law - Topic 5449 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - A jury convicted M.T. of sexual assault, sexual interference and invitation to sexual touching - The complainant was M.T.'s niece, E.G. - On appeal, M.T. asserted, inter alia, that the trial judge had erred in failing to instruct the jury about the use they could make of evidence of extrinsic misconduct by M.T. - The evidence at issue was E.G.'s account of an assault by M.T. on V., E.G.'s brother - The Ontario Court of Appeal dismissed the appeal - The misconduct "was of brief duration ... much less serious, and of a different kind, than the offences charged" - The prospect of propensity reasoning seemed, at best, tenuous - Limiting instructions about evidence of extrinsic misconduct were not necessary in every case - The requirement of a limiting instruction depended on a variety of circumstances including, but not limited to, the nature and extent of the evidence of extrinsic misconduct, the likelihood the limiting instruction might unnecessarily draw attention to the discreditable conduct, and the extent of the risk that the evidence might be used improperly - M.T.'s very experienced trial counsel had not contested the admissibility of the evidence, had not sought a limiting instruction and did not object to its omission - It was a reasonable inference that M.T.'s trial counsel had not considered the omission to be serious - Finally, the evidence did not relate to the central issue, namely whether the conduct alleged took place at all - See paragraphs 71 to 90.

Criminal Law - Topic 5450

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

Evidence - Topic 1130

Relevant facts - Relevance and materiality - Relevance of evidence offered - Prior consistent statements - [See Criminal Law - Topic 4375.3 ].

Cases Noticed:

R. v. Gervais (1990), 37 Q.A.C. 274; 58 C.C.C.(3d) 141 (C.A.), refd to. [para. 34].

R. v. A.G.M. (1993), 26 C.R.(4th) 379 (Que. C.A.), refd to. [para. 34].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 36].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 40].

R. v. A.R.B. (1998), 113 O.A.C. 286; 41 O.R.(3d) 361 (C.A.), affd. [2000] 1 S.C.R. 781; 255 N.R. 201; 135 O.A.C. 144; 2000 SCC 30, refd to. [para. 41].

R. v. Riley (N.W.) (1992), 11 O.R.(3d) 151 (C.A.), leave to appeal refused [1993] 2 S.C.R. x; 154 N.R. 400; 64 O.A.C. 400, refd to. [para. 50].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 53].

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. 64].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 64].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 16 O.R.(3d) 1 (C.A.), refd to. [para. 65].

R. v. Henrich (J.) (1996), 92 O.A.C. 94; 29 O.R.(3d) 740 (C.A.), refd to. [para. 65].

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. 70].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 70].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 81].

R. v. Largie (G.) et al. (2010), 266 O.A.C. 103; 101 O.R.(3d) 561; 2010 ONCA 548, refd to. [para. 82].

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. 83].

R. v. Beausoleil (C.) (2011), 283 O.A.C. 44; 277 C.C.C.(3d) 48; 2011 ONCA 471, refd to. [para. 87].

R. v. C.B. (2008), 237 O.A.C. 387; 2008 ONCA 486, refd to. [para. 88].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 62 O.R.(3d) 263 (C.A.), refd to. [para. 97].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 114].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 114].

R. v. Layton (C.A.), [2009] 2 S.C.R. 540; 390 N.R. 340; 245 Man.R.(2d) 26; 466 W.A.C. 26; 2009 SCC 36, dist. [para. 114].

R. v. M.C.M. (2003), 172 O.A.C. 215; 176 C.C.C.(3d) 263 (C.A.), refd to. [para. 117].

R. v. Scott (H.) (2002), 157 O.A.C. 246 (C.A.), refd to. [para. 117].

R. v. Zebedee (J.) et al. (2006), 212 O.A.C. 23; 81 O.R.(3d) 583 (C.A.), refd to. [para. 128].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 276 [para. 29].

Counsel:

David E. Harris, for the appellant;

Susan Magotiaux, for the respondent.

This appeal was heard on January 25, 2012, by Feldman and Watt, JJ.A., and Dambrot, J.(ad hoc), of the Ontario Court of Appeal. On July 25, 2012, Watt, J.A., delivered the following judgment for the court.