Court of Appeal for Ontario

Date: 2001-10-26 Docket: C35377

Re: HER MAJESTY THE QUEEN (Respondent) - and – G. G. (Appellant)

Before: FINLAYSON, AUSTIN and SHARPE JJ.A.

Counsel: G. G. in person Ken Campbell for the respondent

Heard: October 22, 2001

On appeal from the convictions by Mr. Justice Kenneth F. Ross, sitting with a jury, dated November 2, 2000.

E N D O R S E M E N T

[1] The appellant was convicted of one count of sexual assault and one count of sexual exploitation. The complainant was the appellant’s 15 year old stepdaughter. The appellant admitted that sexual contact had occurred. He testified that on the night in question, he had had sex with his wife and went back to sleep. His wife left the bed, and according to the appellant, he was woken up by someone he thought to be his wife straddling him. The complainant gave a very different version testifying that the appellant entered her bedroom following which a non-consensual sexual acts occurred.

[2] The appellant asks that we admit as fresh evidence a videotape of a statement given to the police by the complainant. It is the appellant’s contention that this statement should have been used at trial to cross-examine the complainant to demonstrate certain inconsistencies in her version of the incident in question. The appellant says that he acquired a copy of the videotaped statement during the trial, after the close of the Crown’s case, but that his trial counsel declined to make any use of it. According to the respondent, the videotape was made available to the appellant’s trial counsel as part of the Crown’s disclosure months in advance of the trial.

[3] Even if we were to accept the appellant’s version, he fails to satisfy the test for the admission of fresh evidence in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 as the evidence was available at the time of trial. If the appellant has a complaint, it is with his trial counsel. The appellant has not taken the requisite steps to raise the competence of his trial counsel as a ground of appeal. Accordingly, we decline to admit the videotape as fresh evidence on appeal.

[4] The appellant also raises two other grounds which indirectly impugn the conduct of his trial counsel. He alleges that he was not afforded the right to elect trial by judge alone and that his case should have been stayed on grounds of unreasonable delay pursuant to s. 11 of the Charter. The record before us makes it clear that on Friday, November 8, 1998, the appellant’s counsel elected trial by judge and jury and that when the case came on for trial, there was no attempt to reelect. No motion was made to the trial judge to have the charges stayed on grounds of unreasonable delay. As these points were not raised at the appropriate time, it is not open to the appellant to bring them forward now.

[5] The appellant also submits that the trial judge erred in failing to instruct the jury that the appellant’s honest but mistaken belief of fact could amount to a defence to the sexual assault charge. The trial judge did instruct the jury on the relevance of the mistake of fact defence with respect to the sexual exploitation charge but expressly stated that it did not bear upon the sexual assault charge. In our view, there is no error in this regard. Mistake of fact did bear upon the sexual exploitation count as consent is not a defence to that charge and if the appellant’s version were accepted by the jury, his alleged mistake as to the identity of the person with whom he was engaged in sexual activity would have a bearing on his liability. Mistake of fact had no bearing, however, on the sexual assault count. On the appellant’s version of the incident, the complainant initiated sexual contact with him. If that version were accepted, there could be no issue as to the complainant’s consent with respect to the sexual assault charge. The defence of mistake of fact simply does not arise. The trial judge clearly instructed the jury that if they accepted the appellant’s version of the events or if they had a reasonable doubt as a result of his evidence, they were to acquit him. There was no error in the trial judge’s instructions.

[6] Finally, we see no error in the manner in which the trial judge dealt with the out of court statement of Linda Jinkerson.

[7] Accordingly, the appeal is dismissed.