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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. M.P., 2018 ONCA 608

DATE: 20180703

DOCKET: C63255

Watt, Brown, and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.P.

Appellant

Jonathan Shime, for the appellant

Andrew Hotke, for the respondent

Heard: February 20, 2018

On appeal from the conviction entered on October 21, 2016
    by Justice J. Christopher Corkery of the Superior Court of Justice, sitting with
    a jury.

Watt J.A.:

[1]

They met at church over two decades ago. Fellow parishioners. Members of
    the Worship Team.

[2]

M.P. was 28. R.C. was 13.

[3]

They also participated in a youth group. M.P. was the group leader. R.C.
    was a member.

[4]

Several years later, R.C. claimed that M.P. had sexually touched her at
    different times over a period of about three years.

[5]

M.P. denied R.C.s allegations. Except for a single kiss.

[6]

A jury found M.P. guilty of a single unparticularized count of sexual
    touching.

[7]

M.P. appeals. He says that the trial judge made several errors in his
    final instructions about how jurors could use some of the evidence admitted at
    trial.

[8]

The reasons that follow explain why I would not give effect to M.P.s
    complaints and would dismiss his appeal.

The background facts

[9]

The central issue at trial was the credibility of the two principals
    M.P. and R.C.  and the reliability of their testimony about what happened between
    them during their relationship.

[10]

R.C.
    gave evidence of several incidents of touching by M.P. when she was under 18.
    M.P. denied that these incidents took place. He claimed that he only had physical
    contact with R.C. when she kissed him on the lips when he was about to kiss her
    on the cheek.

The Principals

[11]

R.C.
    and M.P. attended the same church. Both were members of the Worship Team. R.C.
    was 13. M.P. was 28. M.P. led a male Bible study group of which R.C.s brother
    was a member. The meetings took place at R.Cs home. R.C. was sometimes at home
    when the group met, but did not participate in their meetings. In 1997, she
    babysat M.P.s children from time to time.

The Relationship between the Principals

[12]

It
    was common ground at trial that from 1996 until 1999, R.C. and M.P. were
    emotionally intimate. Where the principals differed in their testimony was
    whether their emotional intimacy became physical.

[13]

R.C.
    alleged that M.P. told her that he was unhappy in his marriage. M.P.
    acknowledged that in the spring of 1997 he told R.C. that he was attracted to
    her personality. He admired her character and wished that his wife had some of
    R.C.s traits. R.C. responded by telling M.P. that she was attracted to him.
    M.P. claimed that he specifically told R.C. that their relationship should not
    be physical. R.C. did not remember any such conversation.

The Specific Incidents

[14]

R.C.
    gave evidence of several specific incidents of physical contact with M.P., who denied
    that any had occurred.
[1]

The Washington Bus Trip

[15]

The
    Youth Group went on a bus trip to Washington D.C. in the summer of 1997. M.P.
    was the male chaperone on the trip. His responsibility was to look after the
    male students.

[16]

R.C.
    testified that when she was eating a popsicle, M.P. said that he was having
    thoughts he shouldnt have. Later, M.P. sat beside R.C. on the bus. He touched
    R.C.s thigh and vagina under her dress, but over her shorts.

[17]

M.P.
    denied these incidents.

The Kiss

[18]

Shortly
    after the Washington trip, M.P. went to R.C.s home to pick up her brother and
    take him to the gym. R.C. came out of the house. As M.P. recalled it, he went
    to kiss R.C. on the cheek. But R.C. turned her face and kissed him on the lips.
    M.P. was shocked. He stepped back. R.C. started talking about something else
    and sat on the front porch.

[19]

R.C.
    did not deny that this incident had occurred. She doubted that it had taken
    place, however, because it would have been too public a display of their relationship.
    She testified that her first kiss was with M.P. before her 16
th
birthday but she could not recall any details about it other than that it was
    sensuous and tender.

The Oshawa Trip

[20]

The
    principals gave conflicting accounts about a trip to Oshawa.

[21]

M.P.
    recalled that towards the end of the summer of 1997, he was to take three youth
    members, including R.C. and her brother, to Oshawa to make up for a youth group
    outing they had missed. When M.P. arrived at R.C.s house to pick up the trio,
    only R.C. was there. He took her to Oshawa alone.

[22]

R.C.
    testified that the trip to Oshawa occurred in 1998. She claimed that she and
    M.P. planned to go on the trip alone so that they could be out together without
    being seen. They held hands and kissed. R.C. was 15, M.P. was 30. They spent
    the day together.

[23]

M.P.
    denied that any hand holding and kissing occurred on the trip to Oshawa,
    whenever it had taken place. He testified that in the fall of 1997, he and R.C.
    discussed their relationship and decided that they should remain casual
    acquaintances.

The Cabin by the Lake

[24]

During
    the winter of 1998, the Youth Group took a trip to a cabin near Lake Chandos.
    R.C. asked whether she could sit with M.P. on the return trip. M.P. demurred.

[25]

According
    to R.C., she sat in the seat immediately in front of M.P. When he put his hand
    over her seat, R.C. licked and kissed his fingers on her own initiative. She
    stopped when they arrived back at the church.

[26]

M.P.
    testified that this incident never occurred.

[27]

M.P.
    explained that in the spring of 1998, R.C. approached him outside the church.
    She told him that she had been wrong and that she had never loved him. They did
    not speak again until the fall of that same year.

[28]

In
    the following months, R.C. would bring young men to youth activities. She did
    this to show M.P. that she was no longer interested in a relationship with him.

The Salsa Tower

[29]

R.C.
    recalled that when she was 16 or 17, M.P. drove her to the school where he
    worked and showed her around his classroom. After they left the school, M.P.
    drove down a gravel path. R.C. saw a silo, painted to resemble a salsa can.
    M.P. stopped the vehicle. The couple made out. M.P. fondled R.C.s breast.

[30]

M.P.
    denied that this incident ever took place.

The Babysitting Incident

[31]

R.C.
    testified about an incident that occurred when she was 16 years old. M.P. asked
    her to babysit at his home. He picked R.C. up and drove her to his home.
    Neither M.P.s wife nor their child were present. R.C. recalled that they
    watched a movie  The English Patient  and made out on the couch. R.C. said
    she climaxed on M.P.s belt buckle. M.P. said something about taking her
    upstairs. Later, he drove her home.

[32]

M.P.s
    ex-wife, C.D., recalled that on one occasion she went to a conference leaving
    her daughter or both children  she could not recall whether her son had been
    born at the time  with M.P. When she returned from the conference, M.P. told
    her that R.C. and one of her friends had come to the house and made her (C.D.)
    brownies.

[33]

M.P.
    denied that this incident ever happened.

The Grassy Hill

[34]

According
    to R.C., when she was around 17, she and M.P. had a conversation on a grassy
    hill. M.P. told her that things would be different after she turned 18. He
    explained that even though his wife was pregnant, this did not mean that he did
    not love her.

[35]

When
    confronted in cross-examination that M.P.s second child had been born the year
    before she turned 17, R.C. claimed that the conversation must have occurred on
    an earlier date.

[36]

M.P.
    denied having advised R.C. of his wifes pregnancy or having had a conversation
    with R.C. about waiting until she turned 18.

The End of the Relationship

[37]

In
    the spring of 1999, M.P.s relationship with his wife was in serious trouble.
    M.P. was depressed. He felt that he should not have married. C.D. confirmed
    M.P.s depression.

The Letter and Disclosures

[38]

In
    June of 1999, M.P. took a brief vacation in a Provincial Park. He was alone. He
    wrote a letter to his wife. He explained that he had developed more than
    friend feelings for someone else. His relationship with this other person had
    become slightly physical. He gave his wife the letter. She wanted to know the
    identity of the other person. M.P. told her that it was R.C. and that they had
    kissed. C.D. wanted M.P. to tell R.C. that he had disclosed their (M.P.s and
    R.C.s) relationship to her (C.D.), since the Worship Team was scheduled to
    perform that weekend. M.P. agreed to do so.

[39]

M.P.
    told R.C. that C.D. was aware of their relationship.

[40]

After
    the performance of the Worship Team, R.C. disclosed her emotional intimacy and
    the kiss to a church elder and later the same day to her parents.

The Response of the Church

[41]

M.P.
    met with the elders of the church. He admitted his emotional attachment to R.C.
    and told them about the kiss. The elders asked M.P. to withdraw from church
    activities for three months; to tell his employer; and to seek counselling.
    M.P. agreed to do so.

The Response of the School

[42]

After
    a Board meeting, M.P. resigned his position as a teacher.

The Disclosures of R.C.

[43]

In
    2004, when she was 22, R.C. disclosed to a friend at university that she had
    been molested by a youth group leader.

[44]

In
    2009, R.C. began Eye Movement Desensitization Reprocessing (EMDR) therapy. She
    testified that the therapy was not specifically related to the incidents with
    M.P.

[45]

Five
    years later, after she learned M.P. had become employed as a secondary school
    teacher in a small city elsewhere in Ontario, R.C. disclosed the details of
    their relationship to police. Charges were laid and a prosecution commenced.

the grounds of appeal

[46]

The
    appellant advances four grounds of appeal. Each contests the adequacy of the
    trial judges instructions about how the jury could use some of the evidence
    adduced at trial in reaching their verdict.

[47]

As
    they were developed in oral argument, I would combine into one two of the
    grounds of appeal and paraphrase them as allegations of error in:

i.

limiting a
W.(D.)
instruction to the testimony of the appellant
    instead of extending it to include other exculpatory evidence such as
    out-of-court statements by the appellant adduced during the case for the Crown;

ii.

failing to instruct the jury on the limited permissible use of prior consistent
    statements by R.C.; and

iii.

admitting and not providing proper instructions about jury use of the
    evidence of a witness, Joanne Beach, about an incident of uncharged misconduct
    on the part of the appellant with R.C.

Ground #1: The
W.(D.)
Instruction

[48]

A
    brief reference to the evidence said to have been erroneously omitted from the
W.(D.)
instruction is sufficient background for an understanding of this complaint of
    legal error.

The Evidentiary Support

[49]

As
    part of the case for the Crown, two witnesses testified about what the
    appellant said to them concerning his relationship with R.C.

[50]

David
    Enns, a youth pastor at the church, reported R.C.s disclosure of an emotional
    attachment to the appellant to a senior pastor at the church. The senior
    pastor, Lee Beach, recalled the appellant having acknowledged an emotional
    attachment to R.C. and a kiss, but nothing further.

[51]

Robert
    DeJong, the chair of the School Board, recalled that at a Board meeting the
    appellant had described his relationship with R.C. as an emotional attachment
    that involved a kiss. Mr. DeJong considered this a one-time indiscretion, and
    a minor thing.

The
W.(D.)
Instruction

[52]

The
    first
W.(D.)
instruction, as the trial judge realized, was deficient.
    In instructing the jury on assessing the accuseds testimony, the trial judge
    said:

If you believe [M.P.s] evidence that he did not commit the
    offence charged, you must find him not guilty.

If after careful consideration of all the evidence, you are
    unable to decide whom you believe, you must find [M.P.] not guilty, because the
    Crown would have failed to prove his guilt beyond a reasonable doubt.

And there is a paragraph missing, I will add this to my
    instruction and that is  even if youre left  I am going to make sure that
    that is correct and I will add that at the conclusion of my charge.

[53]

Later,
    the trial judge instructed the jury to reach their verdict after considering
    the evidence as a whole:

In each case, your job is to decide what conclusions you will
    reach based upon the evidence as a whole, both direct and circumstantial. To
    make your evidence [
sic
], use your common sense and experience.

[54]

At
    the end of his charge, the trial judge reminded the jury of his earlier error
    and instructed them in these terms:

You may recall early in my charge, I spoke about the testimony
    of the accused. I noted in my instructions to you that I believe something was
    missing. I am going to repeat that instruction to you with some additional instruction.

If you believe [M.P.s] evidence that he did not commit the
    offence as charged, you must find him not guilty. If after careful
    consideration of all the evidence, you are unable to decide whom you believe,
    you must find [M.P.] not guilty because the Crown would have failed to prove his
    guilt beyond a reasonable doubt.

Even if you do not believe [M.P.s] evidence, if it leaves you
    with a reasonable doubt about his guilt or about an essential element of an
    offence charge [
sic
], you must find him not guilty of that offence.
    Even if [M.P.s] evidence does not leave you with a reasonable doubt of his
    guilt or about an essential element of an offence charged, you may convict him
    only if the rest of the evidence that you do accept proves his guilt of it
    beyond a reasonable doubt.

[55]

In
    response to a question by the jury which sought clarification about the four
    specific incidents about which R.C. had testified, the trial judge explained:

If you accept the evidence of [M.P.] that there was only one
    unexpected and unintentional kiss or are left with a reasonable doubt by his
    evidence
or any of the evidence
, then you must find that that this
    touching was not for a sexual purpose and that the answer to question three is
    no. [Emphasis added.]

[56]

Trial
    counsel for the appellant did not take any objection to this aspect of the
    charge at the pre-charge conference, after the charge was given, or in the
    answer to the jurys question.

The Arguments on Appeal

[57]

The
    appellant says that the trial judge erred by failing to include in his
W.(D.)
instruction any reference to exculpatory evidence from sources other than
    the appellants testimony; for example, the testimony of Enns and DeJong of
    exculpatory remarks made by the appellant at the church and school board
    meetings.

[58]

The
    respondent rejects any claim of prejudicial error in the trial judges
    instructions grounded on
W.(D.)
. The respondent contends that the
    evidence relied upon here is not wholly exculpatory, rather only partially so
    since it reveals a physical relationship with a person whose consent is legally
    ineffectual. In addition, the respondent argues, the omission of the
    instruction now sought on appeal did not leave the jury untutored about the
    relevance of out-of-court statements in an assessment of the appellants guilt.
    Its relevance was part of the defence position at trial, a position that the
    trial judge fairly summarized in his charge.

[59]

The
    respondent further submits that the charge, read as a whole, brought home to
    the jury the need to consider all the evidence in determining whether the Crown
    had proven its case against the appellant beyond a reasonable doubt. Finally, the
    respondent notes that the complaint advanced on appeal was never raised by
    defence counsel at trial (not Mr. Shime).

The Governing Principles

[60]

In
    this province at least, the instruction propounded in
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742 applies whenever credibility issues arise between the case
    for the Crown and evidence for the defence. The defence evidence may be an
    accuseds testimony or out-court-statement, as for example on police interview
    tendered as part of the case for the Crown. Contradictory evidence may arise
    from other evidence called by the defence or conflicting evidence favourable to
    the defence in the case for the Crown. This evidence may require the jury to
    make factual findings.  The decision in
W.(D.)
applies in these
    circumstances:
R. v. D.(B.),
2011 ONCA 51, 266 C.C.C. (3d) 197, at
    paras. 105 and 114. It explains how the principle of reasonable doubt relates
    to the process by which the jury resolves conflicting evidence. The jury must
    understand that it is
not
essential for them to believe the defence
    evidence, but rather that it is enough that, considered in the context of all
    the evidence, the conflicting evidence leaves them with a reasonable doubt
    about the accuseds guilt:
D.(B.)
, at para. 114.

[61]

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 parts 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.

The Principles Applied

[62]

As
    I will explain, I would not give effect to this ground of appeal.

[63]

First,
    I approach the task of assessing the impact of the omission in issue mindful of
    the appellants entitlement  a properly instructed jury, not a perfectly
    instructed jury:
R. v. Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19, at
    paras. 41-42;
R. v. Jacquard,
[1997] 1 S.C.R. 314, at paras. 2 and 62.
    And by being equally attentive to the necessity of considering the whole of the
    charge and other aspects of the trial, such as the addresses of counsel and the
    positions they advanced:
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R.
    581, at para. 39.

[64]

Second,
    the appellants complaint is based on his characterization of his utterances as
    exculpatory evidence. But it may be open to question whether that is a fair
    characterization of their overall tenor. Much depended on what the jury found
    the appellant actually said and how they interpreted it in light of his
    testimony at trial.

[65]

In
    addition, any claim of prejudicial non-direction cannot be determined without
    regard to the charge as a whole. For passages elsewhere in the charge go some
    way to repairing the prejudice said to follow from the omission. In summarizing
    the position of the defence, the trial judge described the truth about what
    happened as a kiss initiated by R.C. and stopped by the appellant. This was,
    after all, the substance of the defence. The trial judge also referenced the
    out-of court statements at issue in his summary of the evidence the jury had to
    consider in determining whether the appellant had touch[ed] [R.C.] with his
    hand, his lips, or his body. And throughout the charge, the trial judge
    emphasised the jurys obligation to consider
all
the evidence before
    rendering its verdict. Such an instruction would encompass the evidence said to
    have been wrongly excluded from the
W.(D.)
instruction.

[66]

Finally,
    trial counsel did not object to the introduction of this evidence, rather
    sought to use it as a prior statement consistent with the appellants rendition
    of events and inconsistent with the detail provided of other incidents in the
    complainants trial testimony. Nor did trial counsel object to the absence of
    the instruction now said to have been essential for a fair trial. Trial
    counsels silence provides some indication that the absence of the instruction
    now sought did not prejudice the appellant:
R. v. Daley
, 2007 SCC 53,
    [2007] 3 S.C.R. 523, at para. 58.

Ground #2: The Instruction on
    R.C.s Prior Statement

[67]

The
    second ground of appeal also advances a claim of non-direction relating to the
    limited use of out-of-court statements, in this instance, by R.C. These
    statements were made several years before the appellant was charged. A brief
    description of those statements and the circumstances in which they were made
    provides sufficient background to determine whether the claim of prejudicial
    error succeeds.

The Prior Disclosures

[68]

In
    2004, several years after she had described her relationship with the appellant
    to church elders, R.C. confided in L.D., her university roommate, that she had
    been molested by a youth group leader. R.C. did not describe the nature of
    the molesting, nor did she identify the youth leader involved. About a decade
    later, R.C. gave a statement to the police.

[69]

Trial
    counsel for the appellant took no objection to the admissibility of R.C.s
    prior statements at trial. During his questioning of R.C., counsel suggested that
    she was fabricating several of her allegations. In an exchange with the trial
    judge, counsel made clear that recent fabrication was a live issue.

The Instructions of the Trial Judge

[70]

In
    his discussion of the evidence relating to the several specific incidents
    described by R.C. under the general heading [d]id M.P. touch R.C. with his
    hand, his lips or his body, the trial judge referred to R.C.s disclosures to
    the police and to L.D. The judge described the police interview as the first
    time R.C. had particularized her allegations in writing, but said nothing
    about the actual details she provided.

[71]

In
    connection with the disclosure to L.D., the trial judge reminded the jury that
    R.C. had told L.D. that she was manipulated and molested by a youth leader.

[72]

Defence
    counsel did not seek or complain about the omission of any mid-trial or final
    instruction about the jurys use of this evidence in reaching its verdict.

The Arguments on Appeal

[73]

The
    appellant says that the trial judge erred in failing to instruct the jury in
    express terms about the limited use of R.C.s prior consistent statements, in
    particular, her disclosure to L.D. at university.

[74]

The
    nub of the appellants complaint has to do with the complete deficit of
    instruction on how the jury could handle this evidence in reaching its verdict.
    The jury was never told that the disclosure to L.D. could not be used as
    evidence that R.C. was manipulated and molested by a youth leader. Nor was the
    jury advised that they could only consider the fact that R.C. complained to
    L.D. to explain the unfolding of events and how the allegations came to the
    attention of the police and the courts. Instructions about the prohibited and
    permitted use of this evidence were crucial in a case such as this where the
    primary issue was credibility. This omission was exacerbated, and improper use
    of the evidence rendered more likely, when the trial judge referred to it as
    relevant on the issue of whether a touching occurred.

[75]

The
    respondent begins with a submission about the admissibility of R.C.s prior statement
    to L.D. This evidence, the respondent says, was properly admitted on any or all
    of three bases which constitute exceptions to the exclusionary rule:

i.

as narrative;

ii.

to rebut an allegation of recent fabrication; and

iii.

to rebut the attack on R.C.s credibility based on prior inconsistent
    statements concerning the same subject-mater.

[76]

As
    for the absence of a mid-trial or final instruction about the limited use the
    jury could make of R.C.s prior consistent statement in reaching its verdict,
    the respondent points out that while the general rule favours such an
    instruction, there is no universal requirement. In this case, the traditional
    limiting instruction was not necessary because:

i.

the appellant relied upon the absence of the detail in any disclosure to
    L.D. to advance an argument that the detailed incidents revealed later were a
    product of subsequent EMDR therapy;

ii.

there was no reasonable likelihood that this disclosure, barren of detail,
    would be used by the jury as proof of the specific incidents or confirmatory of
    R.C.s testimony about them; and

iii.

no one relied upon this disclosure for either of the purposes identified
    in (ii).

The Governing Principles

[77]

As
    a general rule, prior consistent statements of a witness in a criminal case are
    inadmissible. They lack probative value. They are self-serving. They are easily
    fabricated. They are redundant. Their repetition before the trier of fact is
    capable of working significant prejudice:
R. v. Stirling
, 2008 SCC 10,
    [2008] 1 S.C.R. 272, at para. 5;
R. v. Demetrius
(2003), 179 C.C.C.
    (3d) 26 (Ont. C.A.), at para. 12;
R. v. J. (M.A.),
2015 ONCA 725, 329
    C.C.C. (3d) 149, at para. 45.

[78]

Like
    other admissibility rules which are primarily exclusionary in their effect, the
    general rule enjoining introduction of prior consistent statements of a witness
    brooks exception:
Stirling
, at para. 5;
J.(M.A.),
at para.
    46. These exceptions permit introduction of prior consistent statements for
    restricted purposes which differ depending on the exception:
R. v. Khan
,
    2017 ONCA 114, 136 O.R. (3d) 520, at para. 27. To rebut a claim of recent
    fabrication:
Stirling
, at paras. 5 and 7;
R. v. Evans
, [1993]
    2 S.C.R. 629, at p. 643. As narrative:
R. v. F.(J.E.)
(1993), 85 C.C.C.
    (3d) 457 (Ont. C.A.), at p. 476;
Khan
, at paras. 29-30. And to provide
    context in which to assess attacks on testimonial reliability based on alleged
    prior inconsistencies:
R. v. O.(L.),
2015 ONCA 394, 324 C.C.C. (3d)
    562, at para. 34.

[79]

Where
    a prior consistent statement has been admitted as an exception to the
    exclusionary rule, a trial judge is generally required to instruct the jury
    about the use that they must not make of this evidence, as well as any use
    which is permissible:
Demetrius
, at para. 21;
J.(M.A.)
at
    para. 47. The prohibition is against use of the statement as proof of the truth
    of its contents:
J.(M.A.),
at para. 47;
F(J.E.),
at p. 476.
    The permitted use varies with the particular exception engaged.

[80]

The
    effect of the failure of a trial judge to properly apprise a jury about the
    limited use of prior consistent statements in reaching its verdict varies.
    Sometimes fatal. Other times, not. As noted above, perfection is not the
    standard by which we are to judge the adequacy of jury instructions. Each case
    falls to be decided according to its own idiosyncratic facts, but the
    authorities yield some relevant considerations:

i.

Did the prior consistent statement extend beyond the mere fact of its
    making to include incriminatory details?

ii.

How many prior consistent statements were introduced or repeated?

iii.

Who introduced the evidence?

iv.

Did the party introducing the evidence rely on it for a prohibited
    purpose?

v.

Was any objection taken to the introduction of the prior consistent
    statements or to the failure to provide instructions limiting their use?

See, for example,
J.(M.A.)
, at para. 64;
O.(L.),
at paras. 39-40;
Ellard
, at paras. 43-44; and
R. v. T.(M.)
,
    2012 ONCA 511, 289 C.C.C. (3d) 115, at paras. 67-70.

The Principles Applied

[81]

As
    I will briefly explain I would reject this ground of appeal.

[82]

As
    it seems to me, L.D.s evidence of R.C.s statement could have been admitted as
    narrative and to rebut an allegation of recent fabrication  the triggering
    event being the EMDR therapy

 if not also to counter claims that R.C.
    was not credible and her evidence not reliable because of inconsistencies in
    her various accounts.

[83]

It
    is common ground that the trial judge failed to tell the jury when L.D. gave
    evidence of R.C.s disclosure or in his final instructions that the jury:

i.

must
not
infer the truth of R.C.s allegations from her
    repetition of her complaint of molestation to L.D.; and

ii.

must
not
use this prior consistent statement to confirm or
    corroborate R.C.s testimony.

[84]

The
    instructions about whose absence the appellant complains could have been given.
    In a perfect jury charge, these instructions would have been given. But
    perfection is not the standard by which we determine the adequacy of a jury charge.
    Every omission, every failure to achieve perfection, does not constitute a
    miscarriage of justice which requires appellate intervention. Several reasons
    persuade me that even if the trial judge committed legal error by omitting the
    instruction now sought by the appellant, this omission did not cause the
    appellant any substantial wrong or miscarriage of justice:
Criminal Code
,
    s. 686(1)(b)(iii).

[85]

First,
    the Crown did not rely on this out-of-court statement for the truth of its
    contents, such as they were. It was no part of the Crowns case that the jury
    should believe R.C. because she told L.D. that she had been manipulated and
    molested by a youth leader. In other words, the party who led the evidence
    the Crown  did
not
invite the jury to use the evidence in reaching
    their verdict by a process of reasoning that a limiting instruction would have
    prohibited.

[86]

Second,
    the paucity of detail in the statement  a barren claim of molestation and
    manipulation  was unlikely to nourish any finding that any specific incident
    described by R.C. occurred as she alleged.

[87]

Third,
    the defence relied upon the default of detail to support its assertion that
    R.C.s allegations were the outcrop of EMDR therapy not the conduct of the
    appellant.

[88]

And
    finally, the failure of trial counsel to object to the introduction of the
    evidence or to the absence of limiting mid-trial and final instructions
    reinforces my conclusion that the appellant suffered no prejudice as a result
    of the admission of the evidence or the absence of an instruction limiting its
    use by the jury.

Ground #3: The Evidence of
    Joanne Beach

[89]

The
    final ground of appeal relates to the admissibility of the evidence of Joanne
    Beach introduced as part of the case for the Crown and the failure of the trial
    judge to instruct the jury about its limited use in reaching its verdict.

The Incident

[90]

Joanne
    Beach was a parishioner and the spouse of a pastor at the church both R.C. and
    the appellant attended. On a single occasion, in 1998 or 1999, Ms. Beach walked
    into the sanctuary of the church. There she noticed R.C. and the appellant.
    R.C. seemed to be getting up from the appellants lap. Ms. Beach described what
    she saw as a playful moment. It was a joke, accompanied by laughter. No
    intimacy was apparent.

The Charge to the Jury

[91]

In
    his instructions to the jury on the position advanced by the Crown, the trial
    judge referred briefly to Joanne Beachs evidence when he discussed the
    observations of church officials about the nature of the relationship between
    the appellant and R.C. Nothing was said about the incident in the judges
    summary of the position of the defence.

[92]

The
    trial judge was not asked and did not caution the jury about the prohibition
    against propensity reasoning as a basis upon which to find or to assist in
    finding the appellants guilt had been established beyond a reasonable doubt.

The Arguments on Appeal

[93]

The
    appellant points out that the trial proceeded on the basis of an acknowledged
    emotional intimacy between the appellant and R.C. The controversy at trial was
    whether that emotional intimacy extended to physical intimacy, as the Crown
    alleged and was bound to prove, or ended with emotional intimacy, as the
    defence contended.

[94]

In
    these circumstances, the appellant continues, the only reasonable basis for the
    tender of this evidence by the Crown was to demonstrate some form of
    inappropriate physical intimacy between the appellant and R.C. To utilize this
    evidence for this purpose is to use it to establish propensity and to invite
    its use in an impermissible way to prove or assist in proving guilt.

[95]

To
    make matters worse, the appellant says, the trial judge failed to divert the
    jury from reasoning from conduct to propensity, and from propensity to guilt.
    Such an instruction was essential to a fair trial and a verdict uncontaminated
    from a process of reasoning against which the law sets its face.

[96]

The
    respondent rejects the suggestion made by the appellant for the first time in
    this court that the evidence of Joanne Beach should have been excluded. This
    evidence was relevant to assist in understanding the true nature of the
    relationship between R.C. and the appellant. It tended to show, contrary to the
    appellants characterization of it, that the relationship extended beyond the
    emotional to a physical intimacy. No admissibility rule barred its reception.

[97]

On
    the subject of jury instructions, the respondent says that we have no
    invariable rule that the instruction for which the appellant contends must be
    given. The circumstances of each case are controlling. In this case, the
    respondent argues that despite the absence of a specific restricted use
    instruction, there was no realistic risk that the jury would travel the
    forbidden propensity route to find the appellants guilt established. The
    evidence related to a single incident. What was observed was less disreputable
    than the conduct charged. The witness herself did not consider what she saw as
    untoward or improper. The Crown did not invite the jury to make improper use of
    the evidence. And defence counsel uttered not a single whisper of protest. Not
    to the admissibility of the evidence. Nor to the absence of an instruction
    about its use.

The Governing Principles

[98]

It
    is a commonplace of our adjectival law that evidence that does no more than
    demonstrate that an accused is a person of bad character and for that reason is
    likely to have committed the offence charged is generally inadmissible:
R.
    v. B. (F.F.),
[1993] 1 S.C.R. 697, at pp. 730-731. Like other rules of
    admissibility, its exclusionary effect is not unyielding, ceding admission
    where the probative value of the evidence exceeds its prejudicial effect.

[99]

Evidence
    of extrinsic misconduct  other bad acts  is admissible by exception where it
    shows or tends to show the nature of the relationship between a complainant and
    the accused:
R. v. K.(K.)
, 2007 ONCA 203, 222 O.A.C. 99, at para. 8.
    See also,
R. v. O.(R.)
, 2015 ONCA 814, 333 C.C.C. (3d) 367, at para.
    16. Evidence of discreditable conduct may also be admissible where it provides
    narrative required to supply context for the evidence directly relevant to the
    charges and where its probative value exceeds its prejudicial effect:
R. v.
    B.(C.)
, 2008 ONCA 486, 237 O.A.C. 387, at para. 30.

[100]

Limiting
    instructions about evidence of extrinsic misconduct are not necessary in every
    case in which such evidence has been introduced:
T.(M.)
, at para. 88;
R.
    v. Beausoleil
, 2011 ONCA 471, 277 C.C.C. (3d) 50, at para. 20;
B.(C.)
,
    at para. 35. Among the factors relevant in determining whether a limiting
    instruction should be given are:

i.

the nature and extent of the evidence of extrinsic misconduct;

ii.

the relative gravity of the extrinsic misconduct in comparison to the
    gravity of the misconduct charged;

iii.

the likelihood that a limiting instruction may reasonably draw attention
    to the discreditable conduct; and

iv.

the extent of the risk that without instruction the evidence may be used
    improperly.

See,
T.(M.)
, at para. 88;
Beausoleil
,
    at para. 20.

The Principles Applied

[101]

In my view, this
    ground of appeal fails on both claims of alleged error.

[102]

To take first,
    the admissibility of the evidence.

[103]

The critical
    issue at trial had to do with the nature of the relationship between R.C. and
    the appellant. R.C. said it was not only emotional, but also physical, as
    revealed by the specific incidents about which she testified. The appellant
    said that it was emotional but only emotional, her unwanted kiss of him aside.
    He resisted any suggestion of a physical component to their relationship.

[104]

The evidence of
    Joanne Beach, now said to have been improperly admitted, was of a single
    incident that tended to shed light on the nature of the relationship between
    the principals. To some it may appear to be of limited probative value. But the
    same could be said of its prejudicial effect. Characterized by its reporter,
    Joanne Beach, as no more than odd for a married man. Sufficiently unremarkable
    to counsel attuned to the best interests of the appellant and his right to a
    fair trial not to warrant objection. It warrants no intervention here.

[105]

Nor am I
    persuaded that the failure of the trial judge to instruct the jury in express
    terms about their use of this evidence during their deliberations caused the
    appellant any prejudice. Several factors lead me to this conclusion.

[106]

First, the
    nature and extent of the evidence. Joanne Beach reported a single incident she
    characterized as odd behaviour for a married man. What she described was not
    a crime. In other words, this is not a case involving extrinsic misconduct
    extending over a lengthy period of time and constituting uncharged criminal
    activity.

[107]

Second, Crown
    counsel did not invite the jury to make improper use of this evidence. Thus,
    there was little risk of the jurors detouring down a path of prohibited
    propensity reasoning, advanced to prove guilt:
T.(M.)
, at para. 67.

[108]

Finally, trial
    counsel did not seek or object to the omission of a limiting instruction. It is
    not without significance that a limiting instruction would have required a
    repetition of the evidence to which it applied. Sometimes, the less said the
    better. Out of sight. Out of mind. That is this case.

CONCLUSION

[109]

I would dismiss
    the appeal.

Released: DW Jul 3 2018

David Watt J.A.
I agree. David Brown
I agree. Grant Huscroft J.A.

[1]
In addition to the incidents described below, R.C. also testified that while
    she was watching a movie with the appellant at her house in 1996, she played
    with his erect penis with her foot under a blanket. M.P. denied this incident.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meloche, 2018 ONCA 640

DATE: 20180716

DOCKET: C64502

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Meloche

Appellant

Ryan Meloche, in person
    assisted by Amy Ohler duty counsel

Grace Choi, for the
    respondent

Heard and released
    orally: July 9, 2018

On appeal from the sentence
    imposed on August 1, 2017, by Justice A. Thomas McKay of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This is a sentence appeal. The unusual circumstances arise as follows.
    The appellant pleaded guilty to several counts, including robbery. The Crown
    and defence counsel agreed to a joint submission on sentence of 18 months.

[2]

At the sentencing hearing, defence counsel made the unusual request for
    the sentencing judge to go beyond the 18 months to two years, so that the
    appellant could be in a penitentiary and receive assistance for his addiction.

[3]

The Crown consented to this request. In actual fact, the appellant has
    not served time in the penitentiary at all. Rather, he has been in a detention
    facility awaiting trial on another matter. Based on these unforeseen
    circumstances, the Crown submits today that this court should impose the 18
    months originally agree to.

[4]

We agree. The sentence of 18 months is substituted for the two years.

[5]

On the agreement of the appellant and the Crown, in order to further the
    goal of rehabilitation, the probation period is increased to two years in the
    same terms as originally said.

M.L. Benotto J.A.

G.T.
    Trotter J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Momprevil, 2018 ONCA 647

DATE: 20180718

DOCKET: C63178

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bernard Roger Momprevil

Appellant

Bernard Momprevil, self-represented

Ingrid Grant, duty counsel

Lorna Bolton, for the respondent

Heard: July 11, 2018

On appeal from the conviction entered on December 16,
    2016 and the sentence imposed on March 2, 2017 by Justice Julie Bourgeois of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of criminal harassment of a former
    girlfriend and sentenced to 14 months imprisonment in addition to the 209 days
    of pre-trial custody credited at 1.5 followed by three years probation.

[2]

He submits that the trial judge erred in her credibility analysis and in
    not staying the charges post-conviction as a result of alleged
Charter
breaches.

[3]

We see no error of law or misapprehension of fact with respect to the
    trial judges reasons at trial or on the stay application such that would
    warrant appellate intervention.

[4]

Likewise the sentence was not unfit, and the reasons disclosed no error
    in principle.

[5]

The appeal as to conviction and sentence is dismissed.


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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
    (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.

(2.1) The offences for the purposes of subsection (2)
    are

(a) an offence under section 423.1, 467.11, 467.111,
    467.12, or 467.13, or a serious offence committed for the benefit of, at the
    direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1),
    19(1), 20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under subsection 21(1) or section 23
    of the
Security of Information Act
that is committed in relation to an
    offence referred to in paragraph (c).

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.
2005, c. 32, s.
    15; 2015, c. 13, s. 19

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. Phillips, 2018 ONCA 651

DATE: 20180718

DOCKET: C61679

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dino Phillips

Appellant

Anil K. Kapoor and Dana C. Achtemichuk, for the appellant

Mabel Lai, for the respondent

Heard: May 28, 2018

On appeal from the conviction entered on February 7, 2013
    by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a
    jury.

Huscroft J.A.:

OVERVIEW

[1]

Three men armed with firearms invaded and robbed two London homes.  The
    question at trial was whether the appellant was one of them.

[2]

The appellant was identified from a photo lineup by one of the
    participants in the crimes, but the case against him depended largely on
    eyewitness identification evidence that was replete with problems. No physical
    evidence linked the appellant to the crimes.

[3]

The jury convicted the appellant of possession of a firearm while
    prohibited; two counts of uttering death threats; kidnapping; two counts of unlawful
    confinement; five counts of robbery; two counts of break and enter; mischief;
    and five counts of pointing a firearm. He appeals on the basis that:

(1)

the
    verdict was unreasonable;

(2)

the trial
    judge failed to warn the jury of the inherent dangers of in-dock identifications;

(3)

the trial
    judge failed to warn the jury of the heightened risk of misidentification
    inherent in cross-racial identifications;

(4)

the trial
    judge provided an inadequate caution regarding the probative value of the photo
    lineup evidence; and

(5)

the trial
    judge provided a flawed
Vetrovec

instruction.

[4]

I agree with the appellant that the trial judge erred in her instructions
    on how the jury should treat the identification evidence, and in particular the
    in-dock identification and photo lineup evidence. Ordinarily a new trial would
    follow.

[5]

However, the verdict was unreasonable in any event. No reasonable jury
    could convict the appellant on the evidence in this case.

[6]

Accordingly, for the reasons that follow, I would allow the appeal, set
    aside the convictions, and enter acquittals on all counts in the indictment.

BACKGROUND

[7]

The home invasions occurred on May 8, 2009. A trio of men, including
    Shawn George and Floyd Deleary, set out to rob the apartment of C., Georges
    drug dealer.

[8]

It turned out that C. was not alone in his apartment. His ex-girlfriend,
    K., K.s infant daughter, and K.s sister M. were there with him. Deleary held
    a gun to K.s head and the intruders tied the hands of K. and C.  M. was forced
    to help the intruders look for money. The intruders were not satisfied with the
    money they found and threatened to kill C., K., and K.s daughter.

[9]

George and Deleary did not cover their faces and referred to each other
    by their first names throughout. The third man, described by the witnesses as the
    black man, covered his face and threatened to kill the victims if they looked
    at him. He was never addressed by name during the commission of the crimes.

[10]

Deleary
    and the black man stole K.s car and drove C. to his parents home at
    gunpoint. George followed in another car, but took off when he thought he saw
    an undercover police car. Deleary and the black man forced their way into C.s
    parents home by holding a gun to C.s mother, M. They robbed the home and
    Deleary told the black man to tie up Cs mother M., father J., and sister E.

[11]

At
    this point, J. reached for a machete and a struggle occurred with the black
    man. Deleary fired his gun. Police sirens were heard. Deleary told the black
    man to get out and he did so, jumping out of the bedroom window and taking the
    machete with him. A witness saw a black man running with what he thought was a
    sword. The machete was found nearby the next day, but there were no
    fingerprints on it. Nor was there any forensic evidence linking the appellant
    to either crime scene.

[12]

Deleary
    was arrested in the stolen car shortly afterwards. George was not arrested
    until February 23, 2010, and the appellant shortly after that, following his
    identification by George in a photo lineup.

Photo lineup identification

[13]

Shawn
    George was questioned by the police following his arrest and indicated that he
    knew the black man only as Virus. He said he could identify Virus and told
    the lead investigator, Detective Blumson, that he had already been shown a
    photo of Virus by another officer.

[14]

Detective
    Blumsons partner, Detective Constable Ellyatt, conducted the photo lineup for
    George. D.C. Ellyatt had been involved in the investigation. For example, he
    had transcribed the victims statements and participated in the arrest of
    George. D.C. Ellyatt prepared photos of twelve different men. The appellants
    photograph was the fifth in the lineup. George identified photograph number 5
    as the man he knew as Virus.

[15]

The
    police did not administer a photo lineup for any of the other witnesses. In
    answer to the question whether this was a not thought of process or
    contemplated and rejected, Detective Blumson testified: No, we, we didnt
    even think about it.

In-dock identification

[16]

At
    the preliminary inquiry, witnesses were asked to identify the black man. The
    appellant was the only black man in the courtroom at the time.

[17]

C.
    did not identify the appellant, as he testified that he did not look at the
    assailants. Nor did M. She testified that she could not identify the black
    man if she saw him again, and expressed the concern that she did not want to
    wrongly accuse someone.

[18]

One
    witness testified that the appellant looked similar to the black man. Several
    witnesses pointed to the appellant in in the courtroom at the preliminary
    hearing and trial.

THE GROUNDS OF APPEAL

[19]

I
    will address the issues concerning the identification evidence before
    addressing the unreasonable verdict argument. The appellant did not advance the
    cross-racial identification issue in oral argument and it is not necessary to
    address it here. In my view, the trial judge made no errors in her
Vetrovec
instruction and I will say no more about it.

Did the judge fail to instruct the jury
    about the inherent danger of in-dock identification?

[20]

The
    appellant submits that the identification of him as the black man in court at
    the preliminary hearing was poor quality evidence that had a prejudicial impact
    and lacked probative value. In-dock identification is inherently problematic,
    as the Supreme Court pointed out in
R. v. Hibbert
, 2002 SCC 39, [2002]
    2 S.C.R. 445, and the risk it poses increases when there are multiple in-dock
    identifications: a jury may use the number of identifications to bolster their
    reliability, a problem identified by this court in
R. v. Jack
, 2013
    ONCA 80, [2013] O.J. No 519, at para. 38. The trial judge failed to give the particularly
    strong caution about the in-dock identification of the appellant that was
    required. The need for such a caution was even greater in this case, given the
    weakness of the other identification evidence; the in-dock identification of
    the appellant at the preliminary hearing was the first time he was identified
    as the black man who committed the crimes.

[21]

The
    Crown emphasizes that the charge must be read as a whole, in the context of the
    trial as a whole, including the closing addresses counsel made. The Crown
    acknowledges that, as general rule, in-dock identifications are entitled to
    little weight:
R. v. Pelletier
, 2012 ONCA 566, [2012] OJ No 4061, at
    para. 93, and that the trial judge did not specifically instruct the jury in
    this regard. However, the Crown submits that counsel and the trial judge
    treated the eyewitness identification evidence with care and that the trial
    judges instructions concerning the frailties of eyewitness identification
    would have been understood as informing the in-dock identification issue. The
    Crown notes that there was no objection to the trial judges charge and
    suggests that this was for a tactical reason: it was part of counsels attempt
    to persuade the jury that the prosecution was built on a flawed police
    investigation.

Discussion

[22]

The
    dangers posed by in-dock identification are well known, as Justice Arbour
    explained in
Hibbert
,
    at para. 50:

[T]he danger associated with eyewitness in-court identification
    is that it is deceptively credible, largely because it is honest and
    sincere.  The dramatic impact of the identification taking place in court,
    before the jury, can aggravate the distorted value that the jury may place on
    it.

[23]

The
    danger has been recognized by this court in a number of cases, most recently
R.
    v. Lewis
, 2018 ONCA 351 and
R. v. Biddle
, 2018 ONCA 520. And the
    danger only increases in the context of multiple identifications, as in this
    case:
Jack
at para. 38.

[24]

Trial
    counsel were well aware of the problem posed by the in-dock identification.
    Crown counsel warned the jury of convicting someone based solely on frail
    identification evidence, stating that in court identification in and of itself
    really isnt that helpful or conclusive. The appellants trial counsel (not
    Mr. Kapoor or Ms. Achtemichuk) addressed the in-dock identification evidence as
    follows:

Mr. Phillips not only had they been told by the police was one
    of the men that they had caught, but Mr. Phillips was the only black man in the
    courtroom and it would be funny if it werent true. Think about it. Theres one
    black guy in the courtroom, what are they going to say? I, I say to you, you
    cannot accept that identification of the preliminary inquiry when you consider
    together the cumulative effect of all of the circumstances surrounding the
    observations at the scene

I hope you will not hesitate in giving that identification zero
    weight because obviously theyve [the witnesses] already seen this individual
    at the preliminary hearing and pointed him out.

[25]

Crown
    counsel specifically stated his expectation that the jury would be instructed
    by the trial judge on in-dock identification and the appellants trial counsel
    no doubt assumed that the trial judge would address the issue.

[26]

But
    the trial judge did not do so. Although she instructed the jury that they should
    be very cautious about relying on eyewitness testimony and alerted them to the
    possibility of mistakes leading to wrongful convictions, the trial judge simply
    identified the in-dock identification as an important consideration:

And youll recall that in this case none of the civilian
    witnesses was presented with a photographic line-up. Almost universally, their
    first observation subsequent to the events of May 8
th
were at the
    preliminary hearing. And we have heard that at that preliminary hearing there
    was but one black man in the court That will be an important consideration for
    you. The preliminary hearing happened I think more than a year after the
    alleged incidents.

[27]

The
    appellants trial counsel made strong submissions on the issue in his closing
    address to the jury, but they were just that: submissions. It was the
    responsibility of the trial judge to instruct the jury, having regard to counsels
    submissions, and she failed to do so. Her silence on the point may well have
    undermined counsels submissions by failing to endorse them.

[28]

In
    my view, the circumstances surrounding the in-dock identification in this case
    are egregious. The in-dock identification of the appellant may have seemed
    strong compared to the other eyewitness evidence, but it was not. Months after
    the traumatic events, the victims identified in court a man they had not been
    able to describe with any significant degree of detail immediately following
    those events  a man they had not identified from a photo lineup because it never
    occurred to the police to administer a photo lineup for them. There was one
    black man to choose from in court: a black man they knew was charged with
    having committed the crimes. The man the police said did it.

[29]

This
    was highly prejudicial, and an instruction to give the in-dock identification
    little weight would not have been sufficient to prevent the risk that the jury
    would give the identification more weight than it deserved, especially given
    the compounding effect multiple identifications could be expected to have. In
    these circumstances, nothing less than an instruction that it would have been
    dangerous to rely on the in-dock identification would do.

[30]

I
    do not accept the Crowns submission that the trial judges instructions
    concerning the frailties of eyewitness identification overlapped the in-dock
    identification issue, and so obviated the need for specific instructions on the
    in-dock identification issue. It cannot be said that the message was broadcast
    and heard, loud and clear, through the trial judges instructions, as the
    Crown contends.

[31]

Nor
    do I think that trial counsels failure to object to the charge should bear
    considerable weight in assessing the adequacy of the trial judges charge, as
    the Crown contends. I see no tactical advantage to the appellant in not having
    objected to the charge.

[32]

The
    bottom line is that the appellant was entitled to a proper instruction
    concerning in-dock identification and did not get one. The trial judges
    failure to instruct the jury concerning the dangers of in-dock identification
    is an error that undermines the fairness of the trial.

Did the judge provide an inadequate caution
    regarding the probative value of the photo lineup evidence?

[33]

The
    appellant submits that the photo lineup procedure employed by the police in
    which Shawn George identified the appellant was deeply flawed and failed to
    comply with most of the recommendations set out in
The Inquiry Regarding
    Thomas Sophonow: The Investigation, Prosecution and Consideration of
    Entitlement to Compensation
(Winnipeg: Manitoba Justice, 2001, Peter Cory,
    Commissioner) (Sophonow Inquiry). In particular:

-

the
    photos did not resemble the appellant;

-

the lineup
    was conducted by D.C. Ellyatt, who had been involved in the investigation, was
    partner of the lead investigator, and was involved in arresting George;

-

D.C.
    Ellyatt made remarks to George after he had selected the fifth photograph
    appearing to validate his choice;

-

George
    was shown a picture of Virus prior to the lineup and knew that he would be in
    the lineup.

[34]

The
    Crown contends that the issues concerning the photo lineup were thoroughly
    vetted before the jury. The only real issue with the lineup was the individual
    photograph that Shawn George probably saw before the lineup was shown to him.
    Crown counsel acknowledged the possibility of contamination in his closing
    address and the appellants trial counsel identified three deviations from the
Sophonow
recommendations in his submissions, in which he argued that the lineup was
    unfair and of no probative value. Moreover, the trial judge instructed the jury
    that shortcomings in the lineup process should cause them some concern, and
    that eyewitness identification is very tricky and unreliable. The trial judges
    instructions were not inadequate. Indeed, the Crown on appeal notes that Crown
    counsel at trial objected to the trial judges instruction on the basis that
    she
overemphasized
the flaws in the photo lineup procedure.

Discussion

[35]

It
    is not contested that the photo lineup in this case did not comply with most of
    the recommendations of the
Sophonow Inquiry
. The Crown accepts as
    much, but argues that the extent of the deviation from those recommendations and
    the significance of the deviation was a matter for the jury.

[36]

I
    accept that, as this court set out in
Pelletier
,
at
    para. 94, although the recommendations of the
Sophonow Inquiry

governing
    the conduct of photo lineups are persuasive tools to avoid wrongful conviction
    arising from faulty eyewitness investigation, they are not conditions
    precedent to the admissibility of eyewitness testimony. Nor do they establish
    rules governing the assignment of weight. That said, the problem in this case
    is more than simply a failure to comply with one or more of the
Sophonow
    Inquiry

recommendations.

[37]

It
    is important to put the photo lineup evidence in context. Shawn George was the
    only witness who was shown a photo lineup  presumably because the other
    witnesses would have had difficulty in identifying the black man. George
    might be expected to have had no difficulty in picking out the person with whom
    he had committed the crimes. However, George testified that he met the man he
    described as Virus just prior to the crimes, and the photo lineup did not
    take place until 10 months later, when George was arrested.

[38]

The
    photo lineup was administered by D.C. Ellyatt, the partner of the lead
    investigator, Detective Blumson. D.C. Ellyatt was involved in arresting Shawn
    George and had been involved in transcribing the witness statements. The
Sophonow
    Inquiry
rejected the suggestion that a police force other than the one
    investigating a crime should conduct the lineups. Members of the same force
    could do so, but this was subject to the requirement that officers dealing with
    an eyewitness should not be involved in the investigation and should not know
    the suspect or whether his photo is included in the lineup.

[39]

It
    would have been preferable if another officer  someone with no connection to
    the investigation  had conducted the photo lineup.
But
    the most significant problem with the photo lineup was this:
Shawn
    George was shown a picture of the man known as Virus and knew that Virus would
    be in the photo lineup prior to choosing the appellant from that lineup.

[40]

George
    testified that he never saw Virus after the crimes until the preliminary
    hearing on April 7, 2011, but that he was shown a photograph of him between
    those dates. He testified to this exchange with Detective Blumson in his
    interview with him:

Q:    Page 32 of the statement that I have, he says this,

Yeah. A little bit later if I come
    back down here with a picture of Hubert do you think youd be able to pick him out?

[You said]: Yeah

[Then he said]: Or um, Virus?

[And you said]: Yeah, hes got
    dreads, long dreads.

Thats Virus youre talking about?

A:    Yes, sir.

Q:    And then Officer Blumson said,

Okay.

[And then you said this]: A big
    fucker. As a matter of fact I was just talking  I was talking to  I really
    I cant really say, but someone of your calibre over on the other squad and
    yeah, they were showing me a picture of him too.

[41]

Although
    George initially testified that he could not remember if this was true, he
    acknowledged that it was. Defence counsel then questioned George concerning his
    testimony at the preliminary hearing:

Q:    Okay.
    And then at the preliminary hearing you were asked about that, page 50 about
    line 20, and this is when I was asking you questions at the preliminary hearing
    which was May the 2nd, 2011. And we were discussing this passage that I just
    quoted and I said,

Right. The way I read this, Officer
    Blumson was interviewing you and you, referring to the other squad, someone of
    your calibre on the other squad, and indicating that they were showing me a
    picture, being Virus, too.

[Your answer was]: Okay. So what
    the hells your point? Get to your point.

And then on page 51 about line
    seven I said,

I suggest to you that before you
    were interviewed by Constable Blumson or Officer Blumson, you were shown a
    photograph of my client by another police officer.

[And you said]: Yes, I was.

Do you remember that question and
    giving that answer?

A:    Yes.

[42]

It
    is not clear who showed George the photograph or whether the photograph George
    was shown prior to the lineup was the same photo that he was shown in the lineup.
    But it was improper procedure in any event, as D.C. Ellyatts testimony
    confirmed. Plainly, this was a matter that the trial judge needed to address.

[43]

The
    trial judge instructed the jury as follows:

Now, youll recall that Mr. George was shown a photo line-up.
    Hes the only person who was shown the photo line-up and it was on February 23,
    2010, so its a significant period of time after the incidents. Now, once the
    photo line-up exists February 23rd, it certainly could have been administered
    to the other witnesses. It was not done and Sergeant Blumson and was asked why
    that was and he said it never occurred to him to administer the photo line-up
    to the civilians.

So Sergeant Blumson details Sergeant Dave Ellyatt to administer
    a photo line-up to Mr. George on February 23, 2010. He, Sergeant Ellyatt, had
    no involvement in the investigation, didnt know which photograph depicted the
    suspect. And thats the right way to do it, have someone administer the photo
    line-up who has nothing to do with the case. However, shortly before the photo
    line-up was shown to Shawn George he was shown an individual photograph of Dino
    Phillips. Id suggest to you that has to cause you some concern. Eye witness
    identification is very tricky and unreliable. I ask you to spend significant
    time in your deliberations on it.

[44]

T
he trial judge began by noting the passage of time
    between the crimes and the photo lineup, which she described as significant.
    She noted, uncritically, that the photo lineup was never shown to any of the other
    witnesses. The trial judge erred in stating that the officer who conducted the photo
    lineup was not involved in the investigation. Plainly, D.C. Ellyatt was
    involved in the investigation, and in a more than peripheral way. This error is
    compounded by the trial judges reiteration that the lineup had been done the
    right way.

[45]

Only
    at the end of this passage did the trial judge advert to the fact that George was
    shown a photograph of the appellant before the lineup. She described this
    causing some concern; reiterated that eyewitness identification can be
    difficult and unreliable; and asked that the jury spend significant time on
    the issue.

[46]

In
    my view, this instruction was wholly inadequate.

[47]

The
    problems with the photo lineup, taken as a whole, were so significant as to
    render Georges identification of the appellant practically worthless, and I
    say this
regardless of the appellants further
    submission that the others in the photo lineup did not resemble the appellant.
    Having identified Virus from a photograph shown to him, George proceeded to choose
    the appellant from a lineup that he knew would include a picture of him.

[48]

In
    these circumstances, the trial judges instruction  essentially encouraging
    the jury simply to be careful with eyewitness evidence and to spend significant
    time on it  was not nearly sufficient to address the problems with the photo lineup
    evidence. As with the in-dock identification, the submissions of counsel are no
    substitute for judicial instructions. Those submissions made clear the nature
    of the identification problems, but they could not explain the law or instruct
    the jury as to its legal obligations. That was the trial judges
    responsibility, and trial counsel clearly contemplated that she would do so in
    light of their submissions. Her failure to do so, combined with her failure to
    properly instruct the jury concerning the dangers of in-dock identification
    evidence, caused the trial to be unfair.

UNREASONABLE VERDICT

[49]

The
errors outlined above would require a new trial. However,
    in the circumstances of this case, the appellant argues that an acquittal is
    required because the verdict is unreasonable. The appellant submits that the
    identification evidence is exceptionally weak and largely prejudicial, and is
    incapable of proving that he is the black man who participated in the home
    invasions. The appellant contends that all of the circumstances identified by
    this court in
R. v. Tat
, [1997] O.J. No. 3579 (C.A.),

are
    present in this case and that the case is particularly well suited to review
    under s. 686(1)(a)(i).

[50]

The
    Crown acknowledges that its case was far from overwhelming. But the Crown says
    that the jury would have appreciated the flaws in the eyewitness identification
    evidence, the problems with Shawn Georges testimony, and the possible
    contamination of his photo lineup evidence. The Crown argues that the absence
    of an application for a directed verdict on the identification issue is
    telling, given that the appellant sought a directed verdict on a different
    basis in regard to some of the counts. This, the Crown says, is a tacit
    acknowledgment that there was some evidence of identity on which the jury,
    properly instructed, could have convicted. The Crown argues that the verdicts
    are supportable on a reasonable view of the evidence and adds that this court
    is entitled to consider the appellants failure to testify in assessing the
    reasonableness of the verdicts.

Discussion

[51]

As
    the Supreme Court explained in
R. v. Biniaris
, 2000 SCC 15, [2000] 1
    S.C.R. 381, at para. 40, juries are required to act judicially, which means
    not only acting dispassionately, applying the law and adjudicating on the basis
    of the record and nothing else, but also arriving at a conclusion that does
    not conflict with the bulk of judicial experience. In determining whether
    this has occurred, the jurys verdict is entitled to deference. The jury heard
    the evidence and saw the witnesses, and stands in a superior position to an
    appellate court. Unease or doubt about a verdict does not render it unreasonable.
    Nor is the court to act as a thirteenth juror in determining whether a
    verdict is unreasonable:
Biniaris
,
at para. 40. Instead, as the court explained in
R. v. Wills
,

2014 ONCA 178, 318 O.A.C. 99, affd
    2014 SCC 73, [2014] 3 S.C.R. 612, at paras. 30-31, the court examines the
    cogency of the evidence having regard to the risk of wrongful convictions in
    specific contexts. The court does not weigh the evidence for purposes of making
    its own determination of guilt or innocence, comparing its determination with
    the verdict reached by the jury and equating disagreement with
    unreasonableness. The court seeks to establish only whether a particular
    verdict goes beyond the bounds of reasonableness.

[52]

Doherty
    J.A. discussed unreasonable verdicts and eyewitness identification in
Tat
at paras. 99-100:

While recognizing the limited review permitted under s.
    686(1)(a)(i), convictions based on eyewitness identification evidence are
    particularly well suited to review under that section. This is so because of
    the well-recognized potential for injustice in such cases and the suitability
    of the appellate review process to cases which turn primarily on the
    reliability of eyewitness evidence and not the credibility of the eyewitness.

T
he
    extensive case law arising out of the review of convictions based on eyewitness
    identification reveals that the concerns about the reasonableness of such
    verdicts are particularly high where the person identified is a stranger to the
    witness, the circumstances of the identification are not conducive to an
    accurate identification, pre-trial identification processes are flawed and
    where there is no other evidence tending to confirm or support the identification
    evidence. (Citations omitted.)

[53]

I
    agree with the appellant that the concerns Doherty J.A. identified are present
    in this case. The appellant was a stranger to the witnesses who identified him;
    the black man was observed in the context of a very stressful home invasion,
    during which he took steps to conceal his identity and warned witnesses not to
    look at him; and Shawn Georges pre-trial identification of the appellant by
    the photo lineup process was deeply flawed. The strongest evidence against the
    appellant came from a
Vetrovec
witness, and there was no independent
    confirmatory evidence supporting his identification of the appellant, and no
    fingerprint or DNA evidence.

[54]

I
    will review the eyewitness evidence briefly before addressing Georges
    evidence.

The eyewitness evidence

[55]

C.
:
    C. testified that he was too frightened to look at the assailants and could not
    provide a description as a result.

[56]

K
.
:
    K. described the black man as tall; 6 5 or more with a medium build;
    approximately 35 years old; with long black hair. He was wearing glasses and
    had brown eyes. He was wearing a heavy winter coat with fur around the hood,
    light green or beige. He had fabric around his neck that he used to cover his
    mouth and nose when she looked at him.

[57]

M
.
:

M. described the black man as taller than her (she is 53-4) with a
    skinny build in his 20s, then in cross-examination added late 20s-early 30s.
    She did not recall him wearing glasses. He was wearing a long black jacket with
    a fur hood and black gloves. She never looked at his face.

[58]

C.s
    mother M.
:

C.s mother M described the black man as taller than her
    height of 410-11, probably between five and six feet. Then she added:
    Maybe two feet taller than me. He sounded Jamaican or black. He had a black
    beard and black braided hair. He was wearing dark glasses so she could not see
    his eyes. He wore a dark jacket, possibly black leather, along with black
    leather gloves. He wore a mask or something that hid his entire neck.

[59]

J
.
:

J. described the black man as tall, at least one foot taller than his
    height of 164 cm. He was about 30 years old and had a moustache and goatee. He
    could not see his hair, but agreed that he could have been bald. He was wearing
    dark glasses and a green coat with patches and a hood, and dark gloves.

[60]

E
.
:

E. described the black man about 6 tall, with a medium build, in his
    thirties. He had a moustache and a goatee and she agreed that he could have
    been bald. He was wearing sunglasses a dark green jacket with fur trim around
    the hood, black gloves, and a bandana. She did not hear an accent.

[61]

The
    neighbour
: The neighbour did not know how tall the man he saw was, but put
    his weight at around 150 lbs, and placed his age at around 17-18. He could not
    see if the man had any facial hair, but looked bald under his toque. He was
    wearing a brown winter jacket with a fur hood.

Summary of the eyewitness evidence

[62]

The
    Crowns acknowledgement that its case was far from overwhelming is an
    understatement. The case depended entirely on identification evidence and the
    quality of that evidence was poor: the various descriptions of the black man
    provided by the victims and the description of the man the neighbour saw are
    vague, general, and often inconsistent.

[63]

For
    example, the victims testified that the black man was tall, although how tall
    he was is not clear. The neighbour testified that the man he saw was 17-18
    years of age; one victim testified that the black man was in his 20s, and
    still others testified that he was about 30 or 35 years of age. Depending on
    the witness, the black man was skinny or had a medium build. His facial hair
    also differed depending on the witness: according to one, he had a black beard,
    but other witnesses testified that he had a moustache and goatee. The man the
    neighbour saw could have been bald, but some victims said the black man had
    long black hair, or braided hair. The only consistent identification evidence
    comes from the in-dock identification by several of the victims, but that
    identification was problematic for the reasons I have outlined.

Shawn Georges evidence

[64]

Not
    only is the weakness of the eyewitness evidence apparent; the Crowns strongest
    evidence is deeply problematic, for it came from Shawn George, an unsavoury
    witness with a lengthy criminal record whose testimony necessitated a
Vetrovec
caution. At the time of his testimony, George was awaiting trial for his part
    in the crimes.

[65]

In
    his closing submissions at trial, Crown counsel acknowledged that George had
    admitted to multiple lies to the police on multiple occasions, and had changed
    his testimony between statements and his evidence at the preliminary hearing,
    and between the preliminary hearing and the trial. He was, as Crown counsel put
    it, the kind of man who will say whatever suits his purpose to try and get him
    where he wants.

[66]

Georges
    description of the black man contradicts those of the other witnesses. He
    described the black man as a big fucker; 30-40 years of age; 240-250 lbs.,
    with a moustache and goatee and dreadlocks. His photo lineup identification was
    problematic for the reasons set out above. Although the Crown argues that
    Georges testimony is confirmed by several pieces of evidence, the confirmatory
    evidence proffered at trial does not support the most important issue
    Georges identification of the appellant as the black man who committed the
    offence.

The verdict is unreasonable

[67]

The
    question on appeal is not whether there is
any

evidence
    capable of supporting a conviction, as it would have been on an application for
    a directed verdict but, instead, whether, considering the evidence as a whole,
    the verdict was one that a properly instructed jury, acting judicially, could
    reasonably have rendered. This determination necessarily involves assessing the
    evidence, not merely identifying its existence. See
R. v. Yebes
,
    [1987] 2 S.C.R. 168;

Biniaris
;
R. v. W.H.
, 2013
    SCC 22, [2013] 2 S.C.R. 180; and in this court,
R. v. Pannu
,
    2015 ONCA 677, 127 O.R. (3d) 545, at paras. 161-164.

[68]

I
    am satisfied that no reasonable jury could have convicted the appellant on the
    evidence in this case, even assuming the jury had been charged properly. The
    absence of an application for a directed verdict on the identity issue is of no
    moment in these circumstances.

[69]

Nor does the appellants failure to testify assist the
    Crown.
An accuseds decision not to
    testify may be a relevant consideration in assessing whether a verdict is
    unreasonable:
Corbett v. R.
,
[1975] 2
    S.C.R. 275, at pp. 280-1;
Pannu
,
at para. 175.
But this was not a case in which the evidence cried
    out for an explanation that only the appellants testimony could have provided,
    such that he must accept the consequences of having remained silent. It was a
    very weak Crown case built on identification. The failure of the accused to
    testify does not undermine his argument that the verdict was unreasonable.

[70]

This
    was a case based entirely on eyewitness evidence. The weakness of the
    eyewitness identification evidence; the flaws in the in-dock and lineup
    identification; the unreliability of Shawn Georges testimony; and the absence
    of independent confirmatory evidence relevant to the identity of the black
    man combine to render the appellants conviction unreasonable. In short, there
    is evidence that the crime was committed by a black man, but it is not
    reasonable to conclude that the appellant was the black man.

CONCLUSION

[71]

I
    would allow the appeal, set aside the convictions, and enter acquittals on all
    counts.

Released:

DW                                                  Grant
    Huscroft J.A.

JUL 18 2018                                    I agree
    David Watt J.A.

I
    agree G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rockey, 2018 ONCA 646

DATE: 20180717

DOCKET: C64699

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Willimore Joseph Rockey

Appellant

David Willmore Rockey, acting in person

Erin Dann, duty counsel

Lorna Bolton, for the respondent

Heard and released orally: July 12, 2018

On appeal from the conviction entered on November 3, 2017
    and the sentence imposed on February 14, 2018 by Justice Patrick Hurley of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Mr. Rockey was convicted after a trial by jury of driving while
    disqualified and failing to stop for the police. He was sentenced to 2 ½ years
    in custody on each offence, to be served concurrently. He has effectively
    served 18 months of that sentence. He appeals both his conviction and his
    sentence.

[2]

Mr. Rockeys conviction appeal is based on the trial judges charge to
    the jury. He takes issue with three aspects of the charge.

[3]

First, he argues that the trial judge erred by failing to direct the
    jury that they cannot use Mr. Rockeys silence as evidence of his guilt. This
    ground of appeal relates to the testimony of two police officers and Mr.
    Rockeys partner, Ms. Theobald, that when the police arrived at Mr. Rockeys
    home shortly after the alleged offence, Mr. Rockey was on the phone with his
    lawyer and refused to come to the door.

[4]

In the circumstances the trial judge was not compelled to direct the
    jury on the prohibited use of silence. Defence counsel did not object to this
    evidence or to the jury charge relating to this event. It would appear that Defence
    counsel chose to use evidence about this event tactically to suggest that it
    tainted the officers identification evidence because they assumed Mr. Rockey
    was guilty because he had called his lawyer. We view the failure of counsel to
    request a direction about Mr. Rockeys silence as reflecting his recognition
    that this charge was not required in the circumstances. The focus of this event
    was clearly on the fact that Mr. Rockey had called a lawyer, not that he failed
    to speak to the police.

[5]

Second, Mr. Rockey argues that the trial judge erred in his direction
    relating to the proper use of prior inconsistent statements made by Ms.
    Theobald. We disagree. The trial judge gave a proper limiting direction on the
    use of prior inconsistent statements. It was not necessary for him to remind
    the jury of the prohibited use of prior inconsistent statements when, shortly
    after giving this limiting direction he reviewed Ms. Theobalds evidence in his
    charge. The jury charge was brief and the direction on the prohibited use of
    prior inconsistent statements was clear.

[6]

Third, Mr. Rockey urges that the trial judge erred by telling the jury
    that they may draw an adverse inference against alibi evidence offered by Ms.
    Theobald, because of her refusal to speak to the police. In her able
    submissions on Mr. Rockeys behalf, duty counsel submits that such a direction
    was inappropriate, given that Ms. Theobald explained during cross-examination
    that she would not speak to the police on the advice of counsel. The jury was
    not required to accept that evidence. It was appropriate for the trial judge to
    explain to the jury that they were permitted to consider Ms. Theobalds refusal
    to be interviewed in evaluating her alibi evidence. We would therefore reject
    Mr. Rockeys conviction appeal.

[7]

We would, however, grant him leave to appeal from sentence and allow his
    sentencing appeal. The trial judge did not take the principle of totality into
    account. He determined an appropriate sentence for each offence separately, and
    then added the sentences together. Although referred to during submissions, his
    analysis does not make reference to the principle of totality.

[8]

The trial judge did not give effect to evidence relating to the hardship
    that custody represents for Mr. Rockey, given that, for security reasons, he
    serves his time in segregated custody.

[9]

Finally, the trial judge failed to analyse the impact that should be
    given to evidence about Mr. Rockeys mental health and rehabilitative efforts.

[10]

We
    therefore set aside the sentence and substitute a sentence of time served.

M.L.
    Benotto J.A.

G.T.
    Trotter J.A.

David M.
    Paciocco J.A.