R. v. Peterpaul
[Indexed as: R. v. Peterpaul]
52 O.R. (3d) 631
 O.J. No. 100
Docket No. C33098
Court of Appeal for Ontario
McMurtry C.J.O., Carthy and Laskin JJ.A.
January 18, 2001
Criminal law–Charge to jury–Criminal record–Accused charged with sexual assault bringing Corbett application to have prior sexual assault conviction withheld from jury –Accused’s application denied–Trial judge giving proper mid-trial instruction to jury that prior record not admissible to prove guilt–Charge to jury failing to repeat proper limiting instruction regarding use of prior record–Accused deprived of fair trial as result of combination of this and other errors–New trial ordered.
Criminal law–Evidence–Hearsay–Accused charged with sexual assault–Shortly after offence friend hearing complainant state that accused was assailant–Identity main issue at trial–Trial judge instructing jury that friend’s evidence may assist when assessing complainant’s evidence of identification–Trial judge erred in admitting friend’s hearsay statement for its truth –Accused deprived of fair trial as result of this and other errors–New trial ordered.
The complainant and her boyfriend attended a party at the accused’s house. The complainant had too much to drink and went to the accused’s girlfriend’s room to lie down. Her boyfriend, M.L., followed her into the bedroom and they engaged in sexual play. The complainant fell asleep. She claimed that she woke up to find that the accused was having sexual intercourse with her. The accused was charged with sexual assault.
The accused had prior convictions for mischief, driving “over 80” and sexual assault. He brought an application at trial to have his sexual assault conviction excised from his record. The trial judge dismissed the application.
A friend of the complainant testified that the morning after the incident she heard the complainant saying, “[the accused] fucked me”. The trial judge instructed the jury that it might find the friend’s evidence helpful in evaluating the complainant’s evidence, “particularly the identification evidence identifying [the accused] as her assailant”. In addition, during their two days of deliberation, the jury asked to hear evidence of the conversation between the complainant and her friend.
In the indictment, the Crown alleged that the offence took place “during the ninety day period, last past and ending, on or about the 15th day of September 1991”. During the pre-charge discussion with counsel, the trial judge ruled that the date of the offence was an essential element of the offence and had to be proved by the Crown beyond a reasonable doubt. Evidence was led at trial suggesting that the sexual assault occurred in 1990, not 1991. In her closing address, defence counsel urged the jury to acquit even if the Crown had proved that the sexual assault occurred, but had not proved that it occurred in 1991 as alleged in the indictment. Following the jury addresses, the trial judge reversed her earlier ruling and held that the date was not an essential element of the offence.
The accused was convicted. He appealed. Held, the appeal should be allowed.
There was no reason to interfere with the trial judge’s refusal to edit the accused’s criminal record. The defence had attacked M.L.’s credibility by cross-examining him on his criminal record. The trial judge did not err in ruling that the jury was entitled to know that the accused himself did not have an unblemished past and that the jury would have a misleading picture of the accused if she edited the record. However, having admitted the entire record, the trial judge was required to instruct the jury that it could use the record to assess the accused’s credibility, but not to infer that the accused was more likely to have committed the offence charged. The trial judge gave a proper limiting instruction mid-trial. However, when she gave the instruction again during her charge, she omitted telling the jury that they could not use the accused’s record as evidence that he committed the sexual assault.
Despite the correct mid-trial instruction, it could not be said that the error was harmless. The mid-trial instruction was given four days before the charge, and the charge was the last set of instructions the jury heard before deliberating.
Moreover, a correct instruction is all the more important when an accused’s record includes a conviction for the same offence as the one charged, or a similar one. The trial judge’s failure to instruct the jury correctly regarding the limited use to be made of the accused’s criminal record was an error.
The statement “[the accused] fucked me” was a hearsay statement and a prior consistent statement which should not have been admitted for the truth of its contents. The trial judge invited the jury to use the statement for the very purpose for which it should not have been used: as self- corroboration of the complainant’s evidence that the accused sexually assaulted her. The statement was not admissible as an out-of-court statement of identification. The complainant and the accused knew each other, and the statement added nothing to her in-court identification. The Crown’s submission on appeal that the statement was admissible under the res gestae exception to the hearsay rule could not be accepted. The statement was not tendered as part of the res gestae and no inquiry was held into its necessity or its reliability.
Therefore, it could not be assumed that the trial judge would inevitably have found the requisite degree of necessity and reliability.
The trial judge’s revised ruling on the materiality of the date of the offence was undoubtedly correct but left the trial judge with the problem of remedying the unfairness caused by her earlier ruling. If the jury thought that defence counsel had misled them, her credibility may have been undermined in their eyes. The trial judge should have instructed the jury that her own error caused defence counsel to address them on the materiality of the date and that defence counsel could not be blamed for doing so.
This was not an appropriate case for the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The cumulative effect of the trial judge’s errors deprived the accused of a fair trial. R. v. Tat (1997), 35 O.R. (3d) 641, 117 C.C.C. (3d) 481, 14 C.R. (5th) 116 (C.A.), consd
Other cases referred to
R. v. A. (J.) (1996), 112 C.C.C. (3d) 528 (Ont. C.A.); R. v. Charland,  3 S.C.R. 1006, 57 Alta. L.R. (3d) 285, 221 N.R. 76, 47 C.R.R. (2d) 375, 120 C.C.C. (3d) 481, 12 C.R. (5th) 226; R. v. Corbett,  1 S.C.R. 670, 28 B.C.L.R. (2d) 145, 85 N.R. 81,  4 W.W.R. 481, 34 C.R.R. 54, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1; R. v. Donovan (1991), 65 C.C.C. (3d) 511 (Ont. C.A.)
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii) Authorities referred to
Wigmore on Evidence, 3d ed., Vol. 6 (Toronto: Little Brown and Co.), Section 1747
APPEAL from a conviction for sexual assault.
Sandra Kingson, for respondent.
Frank D. Crewe, for appellant.
The judgment of the court was delivered by
 LASKIN J.A.:–After a trial before Caswell J. and a jury, the appellant Merle Peterpaul was convicted of sexually assaulting J.H. He was sentenced to 21/2 years in the penitentiary. He appeals his conviction.
 In my view, the appellant is entitled to a new trial. The trial judge made three errors in her charge to the jury: first, she failed to give a complete limiting instruction on the jury’s use of the appellant’s criminal record; second, she failed to give a proper limiting instruction on how the jury could use a statement allegedly made by the complainant shortly after the incident; and third, she likely undermined defence counsel’s credibility with the jury by not fairly remedying an earlier incorrect ruling she had made concerning the materiality of the date of the offence. The cumulative effect of these three errors deprived the appellant of a fair trial.
 The incident took place on a summer night in 1991 after a party at the house where the appellant lived with his girlfriend, Louise Amyot. The complainant, Ms. H, and several of her friends, including L.D., had gone to a restaurant earlier in the evening and later ended up at the appellant’s house where the party was going on.
 At some point during the evening, the complainant went into Ms. Amyot’s bedroom and lay down on the bed because she had had too much to drink. While she lay on the bed, she was sexually assaulted. The main issue at trial was who assaulted her: the appellant, or a man J.H. was dating named M.L.
 M.L. admitted that he followed J.H. into the bedroom. He said that they played, necked and “wrestled a bit in the nude”. However, he testified that they did not have sexual intercourse. He said that when he left the bedroom, the complainant was lying on the bed with no top on and her pants around her ankles “if they were on at all”.
 The complainant said that after M.L. left she slept for several hours. When she woke up, she claimed that the appellant –whom she knew as Oka–was having sexual intercourse with her. The complainant testified that she pushed the appellant off of her and then watched him zip up his pants. She said that although the bedroom was dark, she could see his face because the light was on in the hallway. After the assault, she screamed, put her pants on and shouted “Oh my God, oh my God, I was sleeping, he was fucking me.”
 The appellant testified. He denied going into the bedroom where the complainant was sleeping, and denied having sex with her or even touching her. He claimed that M.L. committed the offence.
 Although the sexual assault took place in the summer of 1991, Ms. H. did not report it to the police until February 1997. She said that she reported it because she was experiencing flashbacks and because it was affecting her life and her relationships.
1. The appellant’s criminal record
 When the trial took place, the appellant had a criminal record consisting of a 1985 conviction for mischief to property, a 1987 conviction for driving “over 80” and a 1997 conviction for sexual assault, for which he received a sentence of five months’ imprisonment and two years’ probation.
 The appellant brought a Corbett application to have his sexual assault conviction excised from his record. The trial judge refused the application. The appellant submits that she erred in doing so and that she compounded her error by failing to properly instruct the jury on what use they could make of the record.
 I would not interfere with the trial judge’s refusal to edit the appellant’s record. The appellant had attacked M.L.’s credibility by cross-examining him on his criminal record. The trial judge therefore ruled that the jury was “entitled to know that the accused himself has a past that is not unblemished”. She concluded that if she edited the appellant’s record, the jury would have an “entirely misleading picture of the accused”. Although admitting a record for the very offence for which an accused is on trial is potentially highly prejudicial, the trial judge’s reasoning in exercising her discretion not to edit the appellant’s record is supported by the majority judgment in R. v. Corbett,  1 S.C.R. 670 at p. 698, 41 C.C.C. (3d) 385 at p. 405.
 However, having admitted the appellant’s entire record, the trial judge was required to carefully instruct the jury on its limited use. This limiting instruction has two prongs: how a jury may use an accused’s record — to assess the accused’s credibility; and how it may not use the record — to infer that the accused was more likely to have committed the offence charged.
 The trial judge did give a proper limiting instruction mid-trial, after the appellant testified. However, when she gave the instruction again during her charge, she omitted the second prong. She told the jury that the accused’s conviction “may be considered by you for one purpose, that is to judge the credibility or truthfulness of the accused as a witness”, but she omitted telling them they could not use the accused’s record as evidence that he committed the sexual assault.
 Defence counsel objected to the trial judge’s failure to fully caution the jury. But the trial judge dismissed the objection, believing that she had repeated her mid-trial instruction word for word in her charge. Unfortunately, she had not. Therefore, the instruction in her charge on how a jury could use the appellant’s criminal record was wrong in law.
 The Crown acknowledges the error but submits that no harm was done because the trial judge’s mid-trial instruction was correct. I disagree. The mid-trial instruction was given four days before the charge, and the charge was the last set of instructions the jury heard before deliberating.
 This case differs from R. v. Charland,  3 S.C.R. 1006, 120 C.C.C. (3d) 481, where the accused was also charged with sexual assault and the trial judge in that case also refused to edit the accused’s record, a record that included previous convictions for sexual assault. The Supreme Court of Canada upheld the discretionary decision of the trial judge because “[t]he trial judge very carefully and correctly instructed the jury both before the cross-examination by Crown counsel and in his charge as to the very limited use they could make of that evidence”, supra, at p. 1007 S.C.R., p. 482 C.C.C. In the case before us, the trial judge incorrectly instructed the jury in her charge.
 Moreover, a correct instruction is all the more important when an accused’s record includes a conviction for the same or similar offence to the one charged. Goodman J.A. made this point, writing for this court in R. v. Donovan (1991), 65 C.C.C. (3d) 511 at p. 534, where an accused was charged with sexually assaulting a child:
The appellant relied, however, on several other submissions. He submitted that the trial judge did not adequately instruct the jury with respect to the limited use which they could make of the evidence of the appellant’s prior criminal record. He instructed the jury as follows:
The fact that the accused has been convicted of certain crimes may be considered by you for only one purpose, namely in judging the credibility or truthfulness of the accused as a witness. The fact of such conviction or convictions does not necessarily destroy or impair his credibility. It is simply one of the circumstances that you may take into consideration in weighing his testimony as a witness.
He did not tell them that the record could not be used to show that the accused was likely to have committed the offence charged. In R. v. Todish (1985), 18 C.C.C. (3d) 159 at p. 163, 7 O.A.C. 336, 13 W.C.B. 367, Martin J.A., in delivering judgment for the court said:
It is well established that it is not sufficient for the trial judge to instruct the jury that prior convictions may be used only with respect to credibility, but he must, in addition, instruct the jury that they may not use the accused’s prior criminal record to show that the accused was likely to commit the offence charged.
In my opinion the trial judge erred in failing to instruct the jury in that fashion. That error takes on an even more serious aspect in that one of the appellant’s prior convictions was for the offence of assault.
 I therefore conclude that the trial judge erred in charging the jury on the appellant’s criminal record.
2. The complainant’s statement after the incident
 The complainant’s friend, L.D., testified that the morning after the incident, she heard the complainant shriek and then saw her pacing up and down in the hallway. She seemed frantic and was saying, “Oka fucked me.” As I have said, the complainant knew the appellant as Oka. Ms. D. then added the following details:
She [Ms. H.] went on to explain that she was lying on Louise’s bed and that when she was lying there she was in a groggy state, and she remembers putting her hands out, and she felt Merle’s hair. It’s not the same as it is right now. It was a bit fuller. And at that point, I guess is when she started to waken and realized what was happening . . . that Merle was having intercourse with her.
The complainant does not recall this conversation with Ms. D.
 The appellant acknowledges that the complainant’s statement “Oka fucked me” was properly admissible as part of the narrative. He contends, however, that the details of the assault related by Ms. D. were not admissible and, more important, that the trial judge was required to give the jury a proper limiting instruction on the use of the statement. He submits that the statement “Oka fucked me” is not just a hearsay statement but is a prior consistent statement and cannot be admitted for the truth of its contents.
 The trial judge, however, instructed the jury:
You may find the evidence of L.D., the third witness, helpful in evaluating J.H.’s evidence, particularly the identification evidence identifying Mr. Peterpaul as her assailant. . . .
She said when they returned to the house both J.H. and Louise were drinking but she did not know how much. They seemed fine. She said J.H. wasn’t annoying. At one point she said she lost track of J.H. and did not find her until daylight.
She was sitting in the living room and heard a shriek and then she saw J.H. pacing the hall. She said she seemed frantic, jittery, crying. She kept saying, “Oka, fucked me.” She told you that she knows Mr. Peterpaul as “Oka”. She said the nickname “Oka” was a joke and it was because Mr. Peterpaul identified himself as a Mohawk warrior.
She said J.H. was crying and very upset and she described her as frantic. She took her out to the kitchen steps. J.H. told her she had awakened to find the accused having intercourse with her.
 The appellant submits that this instruction was wrong. He contends that the jury was invited to use the statement for the very purpose [for which] it should not have been used: as self-corroboration of the complainant’s evidence that the appellant sexually assaulted her. He relies on the judgment of this court in R. v. A. (J.) (1996), 112 C.C.C. (3d) 528 at p. 536, where Labrosse J.A. wrote:
In the course of his charge, the trial judge specifically referred to prior statements made by two of the complainants. Crown counsel concedes that certain statements were prior consistent statements. No issue is raised with respect to the admissibility of the statements. However, no instruction was provided to the jury to the effect that these statements could not be used as proof of the facts stated. Without an instruction as to the limited use to be made of this evidence, the jury may well have used the evidence for the very purpose which is prohibited: as a form of self- corroboration. See R. v. Lajoie (1993), 64 O.A.C. 213 (C.A.). In R. v. Wait (1994), 69 O.A.C. 63 at p. 65, this court noted that it has been held repeatedly in our court that such a limiting instruction is mandatory.
 I agree with the appellant’s submission. On appeal, in her able argument on behalf of the Crown, Ms. Kingston sought to support the admissibility of the complainant’s statement for the truth of its contents and thus sought to support the trial judge’s instruction on two grounds not advanced at trial: as an out-of-court statement of identification, and as a spontaneous utterance. Neither ground assists the Crown.
 In R. v. Tat (1997), 35 O.R. (3d) 641, 117 C.C.C. (3d) 481 (C.A.), Doherty J.A. discussed at length when an out-of- court statement of identification may be admitted as substantive evidence. He summarized the rationale for admissibility in the following passage at p. 650 O.R., pp. 498-99 C.C.C.:
Clearly, the evidence of the prior descriptions given and the prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self- serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification . . .
If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.
 This rationale makes sense in a “classic” identification case where the identifying witness does not know the alleged perpetrator. The in-court identification by itself has little probative value, and the earlier identification is likely to be more reliable. But this rationale does not apply here because this is not a classic identification case. The complainant and the appellant knew each other. The complainant’s earlier statement “Oka fucked me” adds nothing to her in-court identification, which was just as probative standing alone. Thus, Tat does not help the Crown. The complainant’s earlier statement remains a prior consistent statement, which, though admissible as part of the narrative, could not be used by the jury for the truth of its contents.
 The second ground relied on by the Crown to support the trial judge’s instruction is that the complainant’s statement was admissible for the truth of its contents as a spontaneous utterance. In other words, the Crown relies on the traditional res gestae exception to the hearsay rule. That exception provides:
This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.
Wigmore on Evidence, 3rd ed., Vol. 6 (Toronto: Little Brown and Co.), at Section 1747.
 The Crown further argues that no conflict exists between this traditional exception to the hearsay rule and the principled approach to hearsay based on necessity and reliability. The Crown submits that Ms. D.’s evidence was necessary because the complainant did not remember the conversation, and that Ms. H’s statement itself was reliable because it was a spontaneous utterance made under “the immediate and uncontrolled domination of the senses”.
 The difficulty with the Crown’s submission is that the statement was not tendered as part of the res gestae. No inquiry was held into its necessity or its reliability. The defence had no reason to cross-examine on these matters. To sanction its admission on appeal for the truth of its contents, I would have to be convinced that “a trial judge would inevitably have found the requisite degree of necessity and reliability.” See Tat at pp. 666-67 O.R., p. 509 C.C.C. I am not so convinced.
 Thus, I remain concerned that in the light of the trial judge’s instruction, the jury would have misused the complainant’s statement. My concern is heightened by the jury’s request to hear again the evidence about the conversation between Ms. D. and the complainant the morning after the incident. That evidence included not just the statement “Oka fucked me” but the follow-up details, details which the Crown conceded should not have been admitted in the first place. Therefore, I conclude that the trial judge erred in the way she instructed on Ms. D.’s evidence of what the complainant said to her.
3. The trial judge’s ruling on the materiality of the date of the offence
 In the indictment, the Crown alleged that the offence took place “during the ninety day period, last past and ending, on or about the 15th day of September 1991”. During the pre- charge discussion with counsel, the trial judge ruled that the date of the offence was an essential element of the offence and had to be proved by the Crown beyond a reasonable doubt. She invited counsel to deal with this issue in their jury addresses.
 Evidence was led at trial suggesting that the incident occurred in 1990, not 1991. Therefore, in her closing address, defence counsel urged the jury to acquit even if the Crown had proved the sexual assault occurred, but had not proved that it occurred in 1991 as alleged in the indictment.
 Following the jury addresses, the trial judge reversed her earlier ruling and held that the date was not an essential element of the offence. This revised ruling was undoubtedly correct but left the trial judge with the problem of remedying the unfairness caused by her earlier ruling. As defence counsel pointed out, if the jury thought she misled them, her credibility may have been undermined in their eyes.
 The trial judge proposed to instruct the jury that the date was not a material element of the offence, but that evidence about the date could be used to assess the reliability and credibility of the complainant’s testimony. The appellant was satisfied with this proposed instruction and the jury was so charged.
 It seems to me, however, that the trial judge should have done more to remedy the potential unfairness arising from her earlier incorrect ruling. She should have instructed the jury that her own error caused defence counsel to address them on the materiality of the date and that defence counsel could not be blamed for doing so. Realistically, this was probably not an instruction that defence counsel felt comfortable asking for. The trial judge’s actual instruction may well have hurt defence counsel’s credibility with the jury.
4. The application of s. 686(1)(b)(iii) of the Criminal Code
 I would not apply the curative proviso in s. 686(1)(b)
(iii) of the Criminal Code, R.S.C. 1985, C-46. In my view,
the cumulative effect of the trial judge’s errors deprived the appellant of a fair trial. I acknowledge that the Crown’s case against the appellant was strong. But it was not overwhelming. The appellant testified and denied committing the sexual assault. Some evidence suggested that M.L., not the appellant, was the perpetrator. That evidence at least raised a reasonable doubt whether the appellant committed the offence. The jury obviously struggled with this case because it deliberated for two full days after a short trial. I am therefore not persuaded that there is no possibility the verdict would have been different if the errors had not been made.
 I would allow the appeal, set aside the conviction and order a new trial.