R. v. W., L.K.

R. v. W., L.K. Collection Decisions of the Court of Appeal Date 1999-09-28 Docket numbers C25528 Judges Osborne, Coulter Arthur Anthony; Moldaver, Michael James; Farley, James Montague Subject Criminal Decision Content DATE: 19990928 DOCKET: C25528 COURT OF APPEAL FOR ONTARIO OSBORNE A.C.J.O., MOLDAVER J.A. and FARLEY J. (ad hoc) BETWEEN: ) ) Damien R. Frost HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) W. Graeme Cameron ) for the respondent L.K.W. ) ) Appellant ) ) Heard: June 17, 1999 ) On appeal from conviction by Desotti J. with a jury on June 18, 1996 and sentence on August 30, 1996 MOLDAVER J.A.: [1] The appellant was tried by a judge and jury on a 25-count indictment alleging various acts of sexual and physical abuse against his step-daughters, T.M. and P.M. and his three biological sons, M.W., S.W. and T.W. He was convicted on 20 counts, including 10 sex-related offences involving T.M. and P.M., one count of assault causing bodily harm upon P.M. and three counts of administering a noxious substance, unlawful confinement and assault in relation to each of his three sons. He was sentenced to a term of imprisonment totalling 18-1/2 years. He appeals against conviction and sentence. THE FACTS Allegations relating to T.M. and P.M. [1962-72] [2] In 1961, the appellant met E.M. E.M. had recently separated from her husband and she and her 10 children were living in Chatham, Ontario. The appellant formed a relationship with E.M. and took up residence with her and the children. They lived in Chatham until January 1962 and then moved to Etobicoke, Ontario. [3] Shortly after the move to Etobicoke, five of E.M.’s children, including a daughter S.M., returned to live with their father in Chatham. The appellant continued to reside with E.M. and her five remaining children, R.M., B.M., T.M., P.M. and D.M. In 1966, the family moved from Etobicoke to Tillsonburg. [4] Over the course of the appellant’s relationship with E.M., which lasted until 1975, E.M. gave birth in 1963 to twin sons, K.T.W. and K.L.W. and a third son, W.W. who died in infancy. From 1962 to 1972, the appellant assumed the role of father towards his natural children and his five step-children. During this period, two very different pictures emerge regarding the appellant’s role as husband and father within the household. [5] According to the evidence of E.M., T.M., P.M., R.M. and the appellant’s natural son, K.T.W., the appellant exerted violent control over the family. He systematically intimidated and brutalized his wife and children and engaged in extreme acts of violence and cruelty to enforce his will. In short, he ruled with an iron fist and brooked no opposition. From his perspective, E.M. and the children were his personal chattels to do with as he saw fit. [6] The appellant, on the other hand, portrayed himself as a loving husband and devoted father. Indeed, when one reads his testimony, the picture that emerges is that of a man of high moral and ethical values. After meeting E.M. in 1961, he was the one who, more out of charity than love, rescued her and the children from a life of poverty and misery. Thereafter, he was the one who worked hard to provide the family with a decent home and comfortable lifestyle and he was the one responsible for instilling moral and ethical values in the children. When the need arose to discipline the children, apart from one or two minor exceptions, he was always in control. At no time did he ever use excessive force and contrary to the evidence of E.M. and the children, he never struck the children with a wooden stick. On those rare occasions when physical force was required to teach the children a lesson, he either used his hands or a small leather strap and the amount of force was always measured. [7] Apart from the appellant, the second of his twin sons, K.L.W., was the only witness who supported his father’s version of the means and methods used to discipline the children.1 [8] Against this backdrop, I turn to the specific allegations against the appellant involving his step-daughters T.M. and P.M. Assault causing bodily harm upon P.M. – 1963 [9] The incident giving rise to this charge occurred in 1963, when P.M., then aged 6 or 7, accidentally broke a household ornament. Upon learning of the broken ornament, the appellant lined-up his five step-children in the living room and demanded to know who was responsible. One by one, the appellant struck each of the children on their hands with a piece of wood until P.M. finally confessed. [10] Ignoring her tears and apologies, the appellant proceeded to strike P.M. over and over again, causing her hands to swell up “like balloons.” According to P.M., the severity of the beating left her unable to close her hands for a week. She was required to stay home from school and had to be fed by her siblings. P.M.’s description of the event was confirmed by her mother E.M., her siblings T.M. and R.M., and in many respects, the appellant himself. [11] The appellant had no difficulty recalling the “broken ornament” incident. He readily admitted to lining the children up and giving each one four or five light taps on the hands, albeit with a leather strap, not a wooden stick. Contrary to the evidence of P.M., E.M. and the others, he claimed that the force used on P.M. was measured and occasioned no injuries whatsoever to her hands. He steadfastly maintained that P.M. did not require treatment afterwards and she did not miss a week from school. Sexual abuse of T.M. [1962-68] [12] T.M. testified that the appellant began to sexually abuse her when she was 11 years old. The first incident occurred when the appellant drove her to Chatham to visit her father. En route, the appellant asked her to “c’mon on over here” and they began to cuddle. T.M. told the appellant that she had previously been sexually abused by her biological father and she therefore knew what the appellant wanted. T.M. then began to play with his penis and when he asked what else her father had taught her, she told the appellant that he could insert his finger inside her vagina. The appellant stopped the car, inserted his finger into her vagina and told her that she was too small to do anything else but that he would come back to it later. [13] The next incident occurred in January 1963, when E.M. was in the hospital giving birth to K.T.W. and K.L.W. T.M., who was now 12, recalled being awakened by the appellant and taken downstairs, away from the other children. After reminding her of what had occurred in the car, T.M. began to play with the appellant’s penis while he fondled her vagina. The appellant also attempted to have intercourse with her but she was still too small. [14] According to T.M., she and the appellant first engaged in intercourse in December 1963, a few months after she had turned 13. Thereafter, the appellant continued to have intercourse with her on a regular basis until the end of 1968. In July 1969 at age 18, T.M. left the family home permanently. [15] For his part, the appellant claimed that T.M.’s allegations were false and he completely denied any sexual contact with her. Sexual abuse of P.M. [1968-72] [16] P.M. testified that when she was 5 or 6 years old, the appellant began telling her that she would marry him when she grew up. It was at about age 10, just after she had reached puberty, that the appellant first began to touch her breasts and vagina. [17] P.M. stated that in the summer of 1968, at age 12, the abuse escalated to full intercourse. The first incident occurred in Chatham at the home of the appellant’s recently deceased father. Thereafter, the appellant continued to have intercourse with her on a regular basis. [18] P.M. testified that when she was 13, the appellant took a black magic marker and inscribed the word “Len’s” on her abdomen, just above her vagina, to demonstrate his “ownership” of her. One evening, about six months after the appellant had begun this practice, E.M. noticed the writing on P.M.’s body. This resulted in a heated altercation between E.M. and the appellant in which E.M. was violently assaulted. According to P.M., the appellant told E.M., “It [the intercourse] was gonna go on.” [19] P.M.’s description of this incident was confirmed by both E.M. and the appellant’s son K.T.W. Significantly, K.T.W. recalled witnessing E.M. and the appellant fighting about the fact that the appellant was having sex with P.M. and he overheard the appellant say, “I’ll have sex with her if I want to.” [20] P.M. testified that after this incident, E.M. realized that she could not stand in the appellant’s way and she began to assist him in the abuse of her own daughter. Once or twice a week, over the next two or three years, E.M. would awaken P.M. and tell her to go to the appellant’s bed and “deal with your Dad.” When P.M. complied, E.M. would go downstairs to the kitchen while the appellant had intercourse with her. [21] P.M. stated that on some occasions, the appellant would come directly to her bedroom and have intercourse with her. Sometimes, she would feign sleep and on the following mornings, the appellant would insist that she stay at home and have sex with him. She also swore that on occasion, the appellant required her to fellate him and swallow his ejaculate. [22] E.M. confirmed the salient features of her daughter’s evidence. She admitted to regularly waking P.M., telling her “Dad wants you.” She would then go to the kitchen and wait until the appellant called for her to return to the bedroom. While she conceded that she did not witness the appellant having sex with P.M. on these occasions, she knew they were “not playing musical chairs.” Much as she attempted from time to time to prevent the abuse from continuing, her efforts proved futile and were usually met with violence. [23] This aspect of P.M.’s testimony was also confirmed by one of E.M.’s other daughters, S.M. S.M. was one of the children, who, in 1963, was sent back to live with her father in Chatham. In 1968, however, when she was 15, she returned to live with the appellant and her mother and she shared a bedroom with her sister P.M. [24] One night, she recalled her mother coming to the bedroom and saying to P.M., “You deal with him.” P.M. got out of bed and left the room. When she returned, her crying caused S.M. to awaken. Some months later, when P.M. was 12 or 13, she confided in S.M. that the appellant was having sexual intercourse with her. [25] Prior to turning 16, P.M. testified that the appellant refrained from ejaculating inside her. However, that changed when she turned 16 and within a matter of months, she became pregnant with the appellant’s child. [26] Following the birth of her daughter K.W. on December 1, 1972, P.M. continued to live with the appellant and E.M., who in turn maintained a spousal relationship. Nonetheless, the appellant, with E.M.’s assistance, continued to have regular intercourse with P.M. and she became pregnant again, giving birth to M.W. on July 25, 1974. When P.M. began pregnant for a third time in 1975, E.M. ordered her and the appellant to leave the home. [27] A third child, S.W. was born on February 6, 1976. By that time, the appellant and P.M. had established their own household. On March 7, 1977, P.M. gave birth to a fourth child, T.W. Shortly thereafter, the appellant, P.M. and the four children moved to a home in Tillsonburg. [28] For his part, the appellant denied engaging in any sexual activity with P.M. before her 16th birthday. He did, however, admit to having sex with her at a local motel in March 1972, one month after she had turned 16. [29] On that occasion, in cross-examination, he claimed that he and E.M. had had an argument about E.M. neglecting him and when he told her he was leaving, P.M. insisted on coming with him. After taking a room at a nearby motel, P.M. told the appellant that she had loved him for a long time, not as a father but as a boyfriend. According to the appellant, much as he initially tried to resist her advances, he ultimately gave in and he and P.M. engaged in sexual intercourse. He was insistent that the incident at the motel occurred before P.M. became pregnant. Indeed, according to his testimony, it was the first time he and P.M. had engaged in any sexual activity. [30] The appellant was then confronted with the fact that in- chief, when asked why he had gone to the motel, he testified that E.M. was furious about his sexual relationship with P.M. which had resulted in her becoming pregnant and she told him, “You better leave and take her with you or I’ll kill her.” The appellant refused to admit that his evidence in-chief on this subject was inconsistent with his evidence on cross-examination. In his view, there was no difference between the two versions and he accused Crown counsel of trying to put words in his mouth. ALLEGATIONS RELATING TO APPELLANT’S BIOLOGICAL SONS [1977-81] [31] Between 1972 and 1977, P.M. gave birth to four children – K.W., M.W., S.W. and T.W. – all of whom were fathered by the appellant. [32] P.M. stated that the appellant was pleased when she gave birth to K.W. because he liked girls. He reacted very differently, however, to the successive birth of three sons. She testified that when their first son M.W. was born, the appellant refused to go to the viewing room to see him and he told P.M. that he did not want her to bring M.W. home. He reacted similarly to the births of S.W. and T.W. In S.W.’s case, he urged P.M. to put S.W. up for adoption. According to P.M., the appellant told her that he did not want to invest time in boys, who, unlike girls, would not do what he wanted when they grew up. [33] E.M. confirmed this aspect of P.M.’s testimony. She testified that the appellant was upset when she herself gave birth to three sons and he reacted in a similar negative fashion to the birth of M.W. On many occasions, she overheard the appellant telling P.M. that he wanted the three boys “to be put away in the care of the Childrens’ Aid Society.” [34] Further confirmation is found in the evidence of K.W., who, at the time of trial, was 23 years old and a former employee of the Ontario Association of Children’s Aid. According to K.W., during her formative years, the appellant treated her much differently than the boys. It was clear to her that the appellant despised the boys and he regularly referred to them as Slittle buggers” or “little bastards.” [35] P.M. testified that she and the appellant lived together as husband and wife from 1975 to 1981. Once again, two very different pictures emerge regarding the appellant’s role as husband and father within the household. [36] P.M. and the four children testified that the appellant exerted violent control over the family. K.W. recalled the appellant describing himself as “the king,” making it clear that he would brook no opposition or disobedience. To enforce his will, he systematically brutalized P.M. and the three boys, subjecting them to extreme forms of cruelty and violence. According to P.M., the appellant engaged in the same pattern of behaviour towards her and the three boys that she herself had witnessed and experienced as a child. [37] For his part, the appellant maintained that he was a model husband and father. He denied abusing P.M. and the three boys, claiming that he only disciplined the children as required and then, in a measured and controlled fashion. To the extent that any of the children may have been abused, the responsibility lay with P.M., not him. [38] Once again, the only witness who supported the appellant’s version of his role as a parent and father was his twin son K.L.W. K.L.W. testified that whenever he was present with the appellant and P.M., he never observed the appellant abusing P.M. or the children. Rather, on the odd occasion that he did witness child abuse, it was P.M. who was responsible. Allegations of unlawful confinement and administering a noxious substance to M.W., S.W. and T.W. [1977-81] [39] According to the evidence of P.M. and the four children, the appellant engaged in a variety of mean-spirited and cruel practices to punish and discipline the three boys. By far and away the most egregious was his practice of confining the boys on a regular basis to bird-cages located in the basement of their home, where they were required to sleep the night sitting upright on a small potty. The cages contained no food or water and as a general rule, the boys were completely naked. If they had to urinate or defecate in the night, they were to call out to the appellant and wake him up. In the event they failed to do so, the appellant would force them to drink their urine and eat their feces the next morning. [40] P.M. testified that this practice first began when the appellant became infuriated with their infant son M.W. for wetting his bed. At the time, she recalled the appellant describing M.W. as “just a little bastard who was doing it on purpose.” [41] Much as P.M. deplored the appellant’s conduct, there was nothing she could do to prevent it. When she raised the subject with the appellant, he would become violent and beat her. Ultimately, in 1981, when she could no longer tolerate the appellant’s abuse of her and the children, she moved out of the home and took the children with her.2 [42] At trial, the three boys, then aged 21, 20 and 19, recounted their memories of being cooped up in the cages at night, sleeping naked in an upright position on potties, feeling cold, frightened and lonely and being forced to drink their urine and eat their feces. [43] In addition to the testimony of P.M. and the three boys, K.W. also gave evidence about the appellant’s practice of confining the boys to cages in the basement. She remembered in vivid detail how the boys were forced to sit on potties, often naked, cold and alone in a dark basement, without blankets, toys, food or water. [44] She testified that at one stage, after her brother M.W. learned to lift the latch on his cage, the appellant placed a combination lock on the door to prevent him from escaping. She remembered this well because she was given the combination to the lock by the appellant, one of her duties being to let her brothers out in the morning and report to the appellant if they had urinated or defecated in their potties. If they had, they were taken upstairs to the bathroom. Although she did not see her brothers being forced to consume their urine or feces, she recalled her mother arguing with the appellant about it, telling him it was cruel and asking him to stop. For his part, the appellant insisted that the practice would continue. K.W. also remembered that the appellant took care to ensure that the cages were hidden away and covered with blankets whenever friends of the family were expected to visit. [45] Further confirmation of the caging of the boys is found in the evidence of three additional witnesses. K.T.W., one of the appellant’s twin sons, testified that when he was 18, he lived with P.M. and the appellant for three months in the early part of 1981. On three or four occasions, he recalled seeing the boys caged in the basement, wearing only T-shirts and sitting on potties. They appeared sad and were trying to amuse themselves by playing with their hands and feet. [46] C.H. testified that in 1981, she was dating the appellant’s twin son K.L.W. and from time to time, they would visit the appellant and P.M. in Tillsonburg and stay the night. She could never figure out where the boys slept and when she asked K.L.W. about this, he told her to mind her own business. [47] On one occasion, she recalled going to the basement. It was completely dark and she heard M.W. whimpering. Upon closer inspection, she found M.W. confined to a cage. As she recalled it, the cage was petitioned into three sections, each one containing a potty. M.W. was sitting hunched over on a potty and when she asked him why he was there, he told her that he could not talk to her. Outraged at what she had seen, C.H. went upstairs and confronted K.L.W. She was certain that the appellant was home at the time. [48] Finally, L.B., a next door neighbour, testified that in the summer of 1981, she and K.W. went to basement of the appellant’s home to locate a leak in their common well. The basement was dark and when she shone her flashlight around, she observed M.W. on his hands and knees in a cage secured with a padlock. When she asked M.W. why he was there, he did not respond. [49] L.B. was shocked and in due course, she notified the Childrens’ Aid Society. That day, she waited until P.M. came home and confronted her with what she had seen. P.M. told her that M.W. had been bad and the appellant had instructed that he be placed in the cage. P.M. promised that she would take the matter up with the appellant when he returned home. [50] For his part, the appellant testified that he never caged the children. He did remember coming home from work on four occasions to find that P.M. had placed M.W. and S.W. in cages in the basement. On each occasion, he told P.M. to stop this practice but claimed that he was unable to control her. Contrary to the evidence of C.H., he denied ever being at home when the children were caged. He also denied feeding urine or feces to the children. On one occasion, however, he recalled returning from work to find P.M. feeding urine, feces and dog food to M.W. and S.W. The appellant was outraged by this and after throwing P.M. to the floor, he picked her up and “shook the living daylights out of her.” [51] The only support for the appellant’s version came from his son K.L.W. He testified that he stayed at the Tillsonburg residence during the summer of 1979 and although he saw a cage in the basement, he never observed a child in it. He did remember coming home on one occasion to find P.M. feeding dog food, urine and feces to the children. Allegations of assault upon M.W., S.W. and T.W. [1977-81] [52] The charges of assault relate generally to the regular beatings the appellant inflicted on his three sons to punish and discipline them. Sometimes, the appellant would use his hands, striking the boys on various parts of their bodies and leaving them bruised. On other occasions, he would use a piece of wood wrapped in electric tape and smack their hands. [53] M.W. recalled one occasion when, as a youngster, the appellant struck him about the face, knocking out two of his baby teeth and bloodying his lip. S.W. recalled an incident when his younger brother T.W. was beaten by the appellant and thrown down the stairs for failing to tie his shoelaces properly. [54] P.M. and K.W. confirmed the appellant’s assaultive behaviour towards the three boys. As well, the next door neighbour, L.B., testified that every time she saw the boys, they had long narrow bruises on their arms and hands. [55] The appellant admitted to disciplining the children but denied ever using excessive force. Other defence witnesses, including friends of the family, a retired teacher and a public health nurse testified that the children appeared healthy and normal. No signs of injury were apparent and they never saw the appellant engage in abusive conduct towards the children. CONVICTION APPEAL Issues [56] Of the various grounds of appeal raised by the appellant, the Crown was called upon to respond to the following five issues: 1. Did the trial judge err in permitting the trial to proceed with 11 jurors?; 2. Did the trial judge err in permitting Crown counsel to cross-examine the appellant on the details of a prior assault conviction?; 3. Did the trial judge err in failing to instruct the jury on the limited use that could be made of the appellant’s criminal record?; 4. Did the trial judge err in failing to instruct the jury on the limited use that could be made of prior inconsistent statements?; and 5. Did the trial judge err in failing to instruct the jury on the use to be made of the evidence at large in deciding the appellant’s guilt or innocence on a particular count? Analysis Issue 1 – Proceeding with 11 jurors [57] At the outset of the trial, 12 jurors were selected and the appellant was put in charge of the jury. Before evidence was called, the trial judge discharged a juror from duty. No issue is taken with that decision. [58] After the juror had been discharged, the trial judge invited submissions from counsel about the propriety of proceeding with 11 jurors. Both Crown and defence counsel [not Mr. Frost] stated that they had no objection to continuing with 11 jurors. [59] The appellant now submits, for the first time on appeal, that the trial judge should not have permitted the trial to proceed without 12 jurors. [60] In my view, there is no merit in this submission. Section 644(1.1) of the Criminal Code was not in force at the time of trial.3 Accordingly, the trial judge was bound by this court’s decision in R. v. Varcoe (1996), 104 C.C.C. (3d) 449, which held that for the purposes of s. 644 of the Code, the trial commences when an accused is put in charge of the jury. It follows that the trial judge did not err in continuing the trial with 11 jurors. Issue 2 – Cross-examination on details of a prior assault conviction [61] In the absence of the jury, before commencing his cross- examination of the appellant, Crown counsel [not Mr. Cameron] informed the trial judge that defence counsel was prepared to concede that the appellant had placed his character in issue in examination in-chief. Accordingly, it was the Crown’s intention to cross-examine the appellant on his character. [62] Defence counsel admitted that although character witnesses had not been called on behalf of the defence, the appellant had indeed placed his character in issue, albeit in a general way by taking the stand and giving evidence. The trial judge agreed with this observation and then sought clarification from Crown counsel as to precise meaning behind his comment that the appellant had placed his character in issue. The following exchange then took place between the trial judge and counsel: THE CROWN: Well, my immediate concern was cross examination and I intend to cross examine him on his character. THE COURT: Then I have no problem with that sir, but if we are getting in to calling reply evidence … Are you going down that road? THE CROWN: I have not contemplated calling evidence of bad character in reply at this stage. THE COURT: There hasn’t been any evidence dealing with the issue of good character and I really would hope that is all that you are talking about. You are just talking about cross examination of character. [Emphasis added.] THE CROWN: At this stage, I am, sir. THE COURT: Absolutely. MR. BATTIN: I agree that that is correct. THE COURT: That’s fine. [63] After this exchange, Crown counsel opened his cross- examination by asking the appellant about his prior criminal record and in particular, the circumstances of an assault upon his sister in 1956 for which he had been convicted and sentenced to six months definite and six months indefinite.4 The appellant admitted the conviction and agreed that it was his father who had reported the assault to the police. He denied, however, that the assault took the form of a beating, claiming instead that he had simply slapped his sister. [64] Crown counsel then established that the appellant had been convicted of two further offences, one in October 1958 for possession of burglary tools, the other in 1976 for theft under $200. The trial judge then excused the jury. He was concerned that the Crown was about to inquire into a further conviction for possession of a prohibited weapon (a sawed off shotgun) and on his motion, he requested that the Crown refrain from doing so. Crown counsel complied and the jury heard nothing about the prohibited weapon offence. [65] The appellant now submits, for the first time on appeal, that the trial judge erred in permitting the Crown to explore the “details” of the 1956 conviction for assault upon his sister. I disagree. [66] As a general rule, cross-examination of an accused on a prior criminal record should be restricted to the nature of the offence, the date and place of the conviction and the penalty imposed. (See R. v. Laurier (1983), 1 O.A.C. 128 (Ont. C.A.) at p. 131.) Where, however, an accused places his or her character in issue, the same restrictions do not apply and it is permissible for the Crown to cross-examine the accused on prior acts of discreditable conduct, including the details of prior convictions. (See R. v. McNamara et al. (No. 1) (1981), 56 C.C.C. (2d) 193 at 350 (Ont. C.A.); and R. v. Farrant, [1983] 1 S.C.R. 124 at 145.)5 [67] Having reviewed the appellant’s examination in-chief, I have no doubt that he placed his character in issue, thereby opening the door to being questioned about prior acts of discreditable conduct, including the details surrounding the 1956 assault upon his sister. Throughout his examination in-chief, the appellant availed himself of every opportunity to extol his moral and ethical virtues in an effort to portray himself as the kind of person who would never abuse anyone physically or sexually, let alone those people, such as his immediate family members, whom he cared for and loved. Having adopted that posture, he placed his character in issue. [68] In the exchange among the trial judge and counsel referred to earlier, it would appear that the trial judge and defence counsel were under the impression that an accused could only put his character in issue by calling character witnesses. With respect, that is not the law. A correct statement of the law is found at p. 346 of R. v. McNamara, supra: Manifestly, an accused does not put his character in issue by denying his guilt and repudiating the allegations made against him, nor by giving an explanation of matters which are essential to his defence. An accused is not entitled, however, under the guise of repudiating the allegations against himself to assert expressly or impliedly that he would not have done the things alleged against him because he is a person of good character; if he does, he puts his character in issue. [69] Once the appellant placed his character in issue, the Crown was entitled to lead evidence designed to level the playing field and provide the jury with a yardstick against which to measure the clear and unmistakable impression that the appellant sought to convey, namely, that he was not the type of person to commit the offences in question. As was pointed out in R. v. McNamara, supra, at p. 350, where an accused puts his character in issue, thereby opening the door to cross-examination on his past conduct, the proof of previous bad conduct can be used in two ways: (i) to rebut his claim to a good character; and (ii) to impugn his credibility at large.6 [70] For these reasons, I am satisfied that the evidence surrounding the 1956 assault conviction was properly admitted. Accordingly, this ground of appeal fails. Issue 3 – Failure to instruct the jury on the limited use of the appellant’s criminal record [71] In his charge, the trial judge made no mention of the appellant’s criminal record and defence counsel raised no objection. [72] The appellant now submits that the trial judge erred in failing to give the traditional instruction that the appellant’s criminal record could only be used to assess his credibility and not to show that he was the type of person likely to commit the crimes with which he was charged. [73] There can be no doubt that the trial judge erred in failing to give the appropriate limiting instruction. In the circumstances, however, I am of the view that the error was harmless and occasioned no substantial wrong or miscarriage of justice. In the overall scheme of things, the prior offences were trivial and apart from the 1956 assault conviction, which the jury was entitled to use to rebut the accused’s evidence of good character and impugn his credibility, they were wholly unrelated to the allegations against the appellant. [74] In my view, it is fanciful to think that the jury would have used the prior convictions to infer that the appellant was the type of person likely to commit the offences in question. As well, given that the offences of possession of burglary tools and theft under $200 involve an element of dishonesty, it would not have enured to the appellant’s benefit had the jury been told that they could take this into account in assessing his credibility. [75] On balance, when the various factors are weighed, including defence counsel’s failure to object, I would not give effect to this ground of appeal. In short, I am satisfied that the verdicts would inevitably have been the same had the trial judge properly instructed the jury on the limited use to be made of the appellant’s criminal record. Issue 4 – Failure to provide legal instruction on the use of prior inconsistent statements [76] In his charge, the trial judge told the jury in general terms that prior inconsistent statements could be used to assess a witness’s credibility. He did not, however, instruct the jury that prior inconsistent statements could only be considered as original evidence if adopted as truthful by the witness. [77] The appellant does not complain about the lack of instruction in relation to any of the witnesses called by the Crown. Rather, his concern relates solely to the witness K.L.W., one of the appellant’s twin sons, who was called by the defence and who gave evidence that by and large supported his father’s testimony. [78] As is apparent from the record, K.L.W. was vigorously and effectively cross-examined by Crown counsel. On numerous occasions, he was confronted with his evidence from the preliminary hearing which directly contradicted his trial evidence on significant issues. In each instance, K.L.W. maintained that his trial testimony was true and he refused to adopt his prior inconsistent evidence. [79] In oral argument, counsel for the appellant fairly conceded that as a result of the cross-examination, K.L.W.’s trial testimony was rendered worthless. In other words, for the purposes of the appeal, he accepts that the substance of K.L.W.’s trial testimony can be taken off the table. He maintains, however, that in failing to instruct the jury that K.L.W.’s unadopted evidence from the preliminary hearing could not be considered as original evidence, the jury may well have used it for that purpose, thereby occasioning serious prejudice to the appellant. [80] Unquestionably, the trial judge erred in failing to give the appropriate limiting instruction to the jury. Nonetheless, I am satisfied that this error occasioned no harm to the appellant. When the contradictions arising from the preliminary hearing are closely scrutinized, it is apparent that they either relate to the conduct of P.M., not the appellant, or to matters which the appellant readily acknowledged in his evidence. [81] For example, in relation to P.M., at trial, K.L.W. claimed that he saw her feeding feces, urine and dog food to the children. At the preliminary inquiry, he denied seeing any such thing. Likewise, at trial, he denied ever seeing the children in cages. At the preliminary hearing, he claimed that he had seen P.M. putting the children in cages and when he raised the matter with his father, his father expressed utter disbelief. [82] As for contradictions involving his father, at trial, K.L.W. testified that the appellant always admitted that he was K.W.’s father. At the preliminary hearing, he maintained that for years, his father denied that K.W. was his child. For his part, the appellant readily accepted that K.W. was his child and the question of paternity was a non-issue at trial. In any event, even if the jury accepted K.L.W.’s preliminary hearing evidence on this point, the risk of prejudice to the appellant was slight. The issue at trial with respect to P.M. was whether the appellant was having a sexual relationship with her before she turned 16, not after. [83] Another example relates to K.L.W.’s evidence about his father holding his and his brother’s hands over a hot element on the stove. On this subject, K.L.W.’s evidence at trial differed in detail from his evidence at the preliminary hearing but he was consistent throughout that neither he nor his brother was injured, that the discipline was measured and that his father was in control at all times. For his part, in-chief, the appellant admitted to holding his sons’ hands over the stove. His evidence did not differ from that of K.L.W. in any material respects. [84] In these circumstances, the risk of prejudice to the appellant was minimal to non-existent. To the extent, if any, that the jury may have used K.L.W.’s testimony from the preliminary hearing as original evidence, it was P.M. who stood to lose, not the appellant. Accordingly, the proviso can safely be applied to sustain the convictions. Had the trial judge instructed the jury properly on the limited use of prior inconsistent statements, in my view, the verdicts would inevitably have been the same. Issue 5 – Failure to instruct the jury on the use to be made of the evidence at large in assessing the appellant’s guilt or innocence on a particular count [85] The appellant submits that the trial judge erred in failing to instruct the jury that in determining the appellant’s guilt or innocence on a particular count, they were only to consider the evidence directly related to that count. In the alternative, the appellant submits that to the extent the jury was entitled to consider the evidence at large in deciding his guilt or innocence on a particular count, the trial judge failed to explain how the evidence could be used and more importantly, how it could not be used. In particular, the appellant contends that it was essential that the jury be told that they could not use evidence of similar acts or other reprehensible acts attributed to the appellant to show that he was the type of person likely to commit the offences in question. [86] Dividing this submission into its component parts, there are two reasons why the first aspect of the appellant’s argument cannot succeed. The first relates to the strategy adopted by the defence at trial; the second to the variety of legitimate uses which the jury was entitled to make of the evidence at large in determining the appellant’s guilt or innocence on a particular count. [87] Beginning with the defence strategy at trial, notably, defence counsel did not move to sever the counts in the indictment; nor did he raise any objection about the trial judge’s failure to provide the kind of limiting instructions that the appellant now claims he should have. [88] Defence counsel knew all along that in support of its position, the Crown was relying upon the evidence at large to show a pattern of abusive conduct on the part of the appellant towards his children and step-children. Indeed, in his closing address, defence counsel used the Crown’s “pattern of abuse” theory to gain important mileage for his client. The Crown’s theory, he contended, could not be correct, because if it were, one would expect to see allegations of abuse from 1972, when K.W. was born, to and including 1981, when P.M. left the appellant, taking the children with her. And yet, no explanation was offered to account for the five year gap in the indictment between 1972 and 1977, when no allegations of abuse were made against the appellant. In other words, the defence was quite content to have the jury look at the whole of the evidence in deciding whether the Crown had proved the appellant’s guilt on any particular count. [89] Having adopted that strategy, it hardly lies with the appellant to argue now, for the first time on appeal, that the trial judge should have instructed the jury to confine itself to evidence directly related to a particular count in deciding the appellant’s guilt or innocence on that count. [90] In any event, regardless of defence counsel’s strategy, I am satisfied that there were many legitimate uses which the jury could make of the evidence at large in determining the appellant’s guilt or innocence on a particular count. Taken as whole, the evidence discloses a pattern of abusive conduct on the part of the appellant towards two families spanning two generations. Domination, subjugation and systemic brutalization are the common themes that thread their way through the evidence. Aside from his own testimony, the picture of the appellant that emerges is that of a self-indulgent man, filled with his own sense of self-importance and imbued with the belief that his wives and children were his personal chattels to do with as he saw fit. The theory of the Crown, amply supported by the evidence, was that the appellant’s abusive conduct manifested itself in different ways. In the case of his two step-daughters, T.M. and P.M., it took the form of degrading and dehumanizing sexual abuse. In the case of the children in general, it involved intimidation, violence and monstrous acts of cruelty and degradation. [91] For present purposes, I see no need to explain in detail the various uses which the jury was entitled to make of the evidence at large in deciding the appellant’s guilt or innocence on a particular count. Suffice it to say that the evidence as a whole could be used for a variety of purposes, including: · to establish the appellant’s motive for committing the offences. (See R. v. F. (D.S.) (1999), 132 C.C.C. (3d) 97 at 106 (Ont. C.A.)); · to reveal the true nature of the appellant’s relationship with his children and stepchildren. (See R. v. Litchfield (1993), 86 C.C.C. (3d) 97 at 116 (S.C.C.)); · to explain the reason for delayed disclosure and the failure on the part of E.M. and P.M. to leave abusive relationships. (See R. v. F. (D.S.), supra, at 107 and R. v. B. (F.F.) (1993), 79 C.C.C. (3d) 112 at 137 (S.C.C.)); · to prove a pattern of abusive conduct on the appellant’s part towards his children, thereby lending credence to the testimony of the individual complainants and belying the defence of innocent association. (See R. v. B. (F.F.), supra, at 137; R. v. C.R.B. (1990), 55 C.C.C. (3d) 1 at 27 and 28 (S.C.C.) and R. v. Litchfield, supra, at 116 and 117); and · to rebut the appellant’s self-portrayal as a man of high moral and ethical character and impugn his credibility at large. (See R. v. McNamara, supra, at 350). [92] Admittedly, certain aspects of the evidence at large could not be used as positive evidence of guilt. For example, as stated earlier, evidence of bad character which did not constitute similar fact evidence could only be used to rebut evidence of good character and to impugn the appellant's credibility. By the same token, other aspects of the evidence at large could be used as positive evidence of guilt. For example, if the jury were satisfied that the evidence disclosed a pattern of abusive conduct on the part of the appellant towards his children and step-children, this could be used to lend credence to the testimony of a particular complainant. Likewise, to the extent that the jury was satisfied of the appellant’s need to dominate and control, this could be used to establish motive on his part and shed light on the true nature of his relationship with the children. [93] Regrettably, the trial judge did not instruct the jury on the uses that could be made of the evidence at large in assessing the guilt or innocence of the appellant on a particular count. More importantly, from the appellant’s perspective, he also failed to direct the jury that they could not use evidence of similar acts or other morally reprehensible acts attributed to the appellant to show that he was the sort of person likely to commit the offences in question. Manifestly, the trial judge erred in failing to provide the requisite limiting instructions. (See R. v. B. (F.F.), supra, at 138 and R. v. R.(K.N.) (1997), 114 C.C.C. (3d) 40 at 47 (Ont. C.A.).) Accordingly, the only remaining question is whether s. 686(1)(b)(iii) of the Criminal Code can be invoked to the cure the error. [94] In R. v. B. (F.F.), supra, the Supreme Court of Canada observed that s. 686(1)(b)(iii) is only to be used in rare and exceptional circumstances. As Lamer C.J. pointed out at p. 117, the curative proviso must be used with “great circumspection” lest accused persons be deprived “of the right to have their guilt or innocence determined by a properly instructed jury of their peers.” Similarly, at p. 140 of that decision, Iacoubucci J. commented that “[s]ection 686(1)(b)(iii) of the Criminal Code is for use in exceptional cases only….” [95] Where the Crown invites an appellate court to apply the curative proviso in a case such as this, where the jury has not received proper legal instruction, to succeed, the Crown must establish (i) that the error was minor and inconsequential and could not possibly have affected the verdict; or (ii) that although the error was potentially serious, the evidence is so overwhelming that the verdict would inevitably have been the same had the jury been properly instructed. [96] In this case, the error in question was serious in the sense that it was realistically capable of occasioning prejudice to the appellant. (See R. v. B. (F.F.), supra, at 139.) Accordingly, if the Crown is to succeed, it must demonstrate that the evidence against the appellant was overwhelming. [97] Unquestionably, the hurdle is a difficult one. As was pointed out in R. v. B.(F.F.), supra, it becomes all the more difficult in cases like this where credibility is the central issue at trial. Nonetheless, I do not read R. v. B. (F.F.) as foreclosing the availability of the proviso in such cases. [98] In the end, I have concluded that this is one of those rare and exceptional cases where the Crown has met its onus. In reviewing the evidence, I have taken pains to show that in every instance, apart from the allegations of sexual abuse involving T.M., multiple witnesses provided corroborative evidence substantiating material aspects of the testimony given by each complainant. [99] Commencing with the allegation of assault causing bodily harm upon P.M., P.M.’s evidence was corroborated by no less than three witnesses, T.M., E.M. and R.M. With respect to the allegations of sexual abuse upon P.M., P.M.’s testimony was likewise corroborated by three witnesses, E.M., K.T.W. and S.M. [100] As for the allegations of unlawful confinement, administering a noxious substance and assault in relation to M.W., S.W. and T.W., apart from confirming each others testimony, additional confirmation is found in the evidence of P.M., K.W., K.T.W., C.H. and L.B. [101] In these circumstances, I am satisfied that had the trial judge provided the proper limiting instructions on the use and misuse of the evidence at large, the verdicts would inevitably have been the same. In short, the evidence against the appellant on the counts involving P.M. and his three natural sons was staggering, such that it can safely be said that the error occasioned no miscarriage of justice. [102] In coming to this conclusion, I have not ignored the appellant’s evidence; nor have I ignored the fact that it is not the function of an appellate court to make findings of credibility. That said, in deciding whether the evidence is so overwhelming that a properly instructed jury would inevitably convict, a court of appeal is surely entitled to examine and to some extent, weigh and consider the effect of the evidence, just as it does when determining whether a verdict is unreasonable. (See R. v. W. (R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.).) Were it otherwise, there would be no room to apply the proviso in cases of serious error where credibility is the central issue at trial. As stated earlier, that is not the law. [103] Having examined and weighed the appellant’s evidence within the limits permitted, I am satisfied that no jury, properly instructed and acting reasonably, could possibly give effect to it. Standing alone against the evidence of no less than 10 family members, the appellant’s testimony is filled with hyperbole and marked by glaring contradictions and inconsistencies on issues of singular importance. Viewed objectively, even the most charitable onlooker would be forced to admit that the appellant’s evidence is incredulous and deserving of little or no weight. In the final analysis, having assessed the appellant’s evidence, I am of the view that it is virtually worthless and it poses no impediment to the application of the curative proviso. [104] As indicated, the allegations involving T.M. stand on somewhat different footing. In short, there is no direct evidence confirming her allegations of sexual abuse against the appellant. That said, had the jury been properly instructed, they would have been told that P.M.’s testimony was capable of confirming T.M.’s evidence. Unquestionably, on the counts involving T.M., P.M.’s evidence was properly admissible as similar fact evidence. Moreover, as I have pointed out, the entire body of evidence concerning the appellant’s pattern of abusive conduct towards his children and step-children was properly admissible as similar fact evidence and it could be used to lend credence to T.M.’s testimony. [105] In these circumstances, I am satisfied that had the jury been properly instructed, the verdicts on the counts involving T.M. would inevitably have been the same. Accordingly, I would not give effect to this ground of appeal. SENTENCE APPEAL [106] The appellant was sentenced to a term of imprisonment totalling 18-1/2 years. He was 58 years old at the time of sentencing and although not a first offender, his criminal record was dated and involved relatively minor offences. [107] The appellant submits that having regard to his age and minor criminal record, the sentence of 18-1/2 years is manifestly unfit and far beyond the range of sentences imposed in like cases. I disagree. [108] There is no need to dwell upon the gravity and seriousness of the offences for which the appellant was convicted. Suffice it to say that over the course of two generations, he systematically brutalized his step-children and natural children, subjecting them to acts of violence, degradation and cruelty of unspeakable proportions. If ever there was a case of stark horror, this is it. [109] The following excerpt from a report co-authored by Dr. Peter Jaffe and Ms. Samantha Poisson of the London Family Court Clinic provides valuable insight into the enormity of the consequences resulting from the appellant’s 20 year long reign of terror: The senior author of this report has over one-quarter century experience working with victims and survivors of domestic violence through the police, courts, and mental health agencies. Mr. W.’s abusive and violent behaviour would be in the category of the most severe form of family violence. Mr. W. has been the architect of permanent mental health and adjustment problems for at least four of his victims. It would be impossible to design a more horrific course of abuse and create more havoc on individuals’ lives than what Mr. W. has perpetrated on his victims. He not only stole from the victims any possibility of a normal childhood and adolescence, but also, left permanent psychological scars and trauma beyond imagination. At least four of his five victims will be forced to relive the trauma over and over again through flashbacks and nightmares. Their adjustment, as adults, is forever compromised. Mr. W.’s abuse not only affected the victims in an historical sense but has also limited the victims’ future opportunity for recovery. Most trauma victims recover through supportive family relationships, caring communities, and trusted counsellors. Mr. W. has violated the victims’ sense of trust that would allow them to develop the necessary relationships for their recovery. They feel betrayed by family members who did not protect them or abandoned them at the time of their greatest need. They have been so humiliated in their abuse, that they are suspicious of any supportive community members. In other words, if society couldn’t protect these victims for three decades, what can society (their community) do now? Four of the victims show total disdain for the possibilities of any successful counselling. Although crises such as suicide attempts may draw them into the mental health system, they are distrustful of any therapist and feel hopeless about any real change. The insidious nature of the abuse not only left four of the victims with permanent psychological scars, but also destroyed the chances of healing. [110] In R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327, a case which bears many similarities to this case, the Supreme Court of Canada restored the 25 year sentence imposed upon the respondent at trial for crimes involving a pattern of physical and sexual abuse against his children over a number of years. Manifestly, the facts here are at least as egregious, if not more egregious than those in R. v. M. (C.A.). It follows, in my view, that the appellant has no cause to complain about the length of his sentence. DISPOSITION [111] In the result, I would dismiss the appeal against conviction. I would grant leave to appeal the sentence and dismiss the appeal. Released: September 28, 1999 _______________________________ 1 K.L.W. was vigorously and effectively cross-examined at trial. In oral argument, counsel for the appellant conceded that his trial testimony is virtually worthless and need not be considered. 2 The evidence reveals that after moving away, P.M. engaged in abusive conduct towards the children and the children were ultimately apprehended by the Childrens’ Aid Society. P.M. was convicted of assault and sent to jail. 3 Section 644(1.1) of the Code was proclaimed in force on June 16, 1997. It enables trial judges, in the exercise of their discretion, to replace a juror in cases where the jury has not yet begun to hear evidence. 4 In-chief, the appellant stated that at age 10, his mother died and his sister, who was 19 years older, cared for him like a mother. He loved her dearly and “she became my mother and my sister and the best friend I’d ever have.” 5 As is the case with most evidence, the trial judge retains a discretion to exclude this type of evidence if its prejudicial effect outweighs its probative value. See R. v. McNamara, supra, at p. 352. 6 The only established exception to this rule is for acts that would also constitute evidence of similar facts. (See R. v. McNamara, supra, at p. 350)