Background
The appellant, S.M., was convicted by a jury in the Ontario Superior Court of Justice of two counts of sexual interference contrary to s. 151 of the Criminal Code against his two granddaughters, B.K. and M.K. The offences occurred when the complainants were between seven and ten years old. At trial, the complainants — then aged 14 and 16 — testified that the appellant touched their breasts and made them touch or kiss his penis. M.K. further testified that the appellant repeatedly touched her genitals and kissed her on the mouth. The appellant was sentenced to six years’ imprisonment.
The appellant challenged his convictions on two grounds: first, that the trial judge’s jury charge on the assessment of young witnesses’ evidence was deficient because it failed to explicitly clarify that the standard of proof beyond a reasonable doubt is not lowered when evidence is given by child witnesses; and second, that the trial judge erred in granting the Crown’s similar fact application by misstating the complainants’ evidence and failing to give the jury a specific limiting instruction against propensity reasoning.
The Court’s Holding
The Court of Appeal, per Rouleau, Wilson, and Madsen JJ.A., dismissed the conviction appeal. On the jury instruction ground, the court found no error. The jury had been properly and repeatedly instructed on the presumption of innocence and the standard of proof beyond a reasonable doubt, and nothing in the trial judge’s separate instruction on assessing child witness evidence undermined or compromised that standard. The court concluded the jury could not have been confused about the applicable standard.
On the similar fact evidence ground, the court rejected both the written and oral arguments advanced by the appellant. The trial judge had fully addressed the risk of inadvertent collusion — acknowledging that the complainants had discussed their allegations on at least one occasion — and clearly explained why that opportunity for tainting did not render their evidence incredible or unreliable. The court held that ruling was entitled to deference. Additionally, the jury was clearly instructed to consider each count separately and not to use a finding of guilt on one count to establish guilt on the other. The court also noted that the jury charge language had been canvassed with trial counsel at the time, with no changes sought.
Key Takeaways
- A trial judge’s instruction on how to assess child witness testimony does not require an express reminder that the reasonable doubt standard is unchanged; provided the jury has been properly and repeatedly instructed on that standard elsewhere in the charge, no clarification is necessary.
- A similar fact ruling will be upheld on appeal where the trial judge meaningfully engaged with the risk of inadvertent collusion and provided a reasoned basis for concluding it did not render the evidence unreliable — deference applies to such rulings.
- A general instruction to consider each count separately and not to use guilt on one count as proof of guilt on another can adequately address propensity reasoning concerns arising from the admission of similar fact evidence.
- Trial counsel’s failure to seek changes to a jury charge during the charge conference, while not determinative, is a relevant consideration when an appellant later argues the charge was deficient.
Why It Matters
This decision reinforces the latitude afforded to trial judges in crafting jury instructions in cases involving child complainants. It confirms that courts need not insert rote clarifications into every component of a jury charge, so long as the charge as a whole accurately conveys the applicable legal standards. For practitioners, it underscores the importance of raising concerns about jury charge language during the charge conference rather than preserving them solely for appeal.
The ruling also provides guidance on similar fact evidence in cases of intra-familial sexual offences, affirming that a trial judge’s careful analysis of collusion risk — even where some opportunity for inadvertent tainting existed — will attract appellate deference when that analysis is reasoned and thorough.