DATE: 20040929

DOCKET:C35708/C38206

COURT OF APPEAL FOR ONTARIO

DOHERTY, LASKIN and JURIANSZ JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Christopher Hicks and

Victor Giourgas

Respondent

for the appellant

• and -

Howard Leibovich and

STEPHEN MICHAEL ROBINSON

Joan Barrett

for the respondent

Applicant

(Appellant)

Heard: August 26, 2004

On appeal from convictions returned by a jury presided over by Justice William J. Morrison of the Superior Court of Justice on June 21, 2000 and the imposition of an indeterminate sentence by Justice Linda M. Walters of the Superior Court of Justice on January 9, 2002, reported at [2002] O.J. No. 652.

DOHERTY J.A.:

I

[1] The appellant was arraigned on seven charges arising out of an incident that occurred in the home of A.M. in July 1998. The incident involved A.M. and her eight year old son J.M.*

[2] The appellant was convicted of four offences:

• assaulting A.M. (an included offence in the charge of assault with a weapon);
• unlawful confinement of A.M.;
• unlawful confinement of J.M.; and
• sexual assault of A.M.

[3] He was acquitted on three charges of uttering death threats.

[4] After the convictions were entered, the Crown moved to have the appellant declared a dangerous offender. Unfortunately, the trial judge became seriously ill and Walters J. assumed carriage of the dangerous offender proceedings. She ultimately determined that the appellant was a dangerous offender and imposed an indeterminate sentence.

[5] The appellant appeals his convictions and the imposition of an indeterminate sentence.

[6] I would hold that the trial judge erred in law in admitting two out-of-court statements made by J.M. That error does not, however, have any effect on the sexual assault conviction, the predicate offence underlying the dangerous offender application. I would dismiss the appeal from the dangerous offender finding and the indeterminate sentence.

II

The Evidence

[7] A brief summary of the evidence will suffice. A.M. testified that she and her son arrived home shortly after midnight on July 18, 1998, to find the appellant in their home. A.M. and the appellant had been seeing each other for a few weeks. The appellant became very angry when A.M. asked him to leave her home. According to A.M., he refused to leave and, over the course of about an hour and a half, brutalized A.M. and terrorized her son. She testified that the appellant ripped her clothes off, sexually assaulted her, put a knife to her throat and demanded fellatio, threatened anal intercourse, threw her down the stairs, dragged her by the hair throughout the house, and repeatedly threatened to kill her.

[8] A.M. testified that in the course of the assault, she managed to place a 911 call. However, the appellant ripped the phone from the wall before she could identify herself. A.M. tried to escape through a window during the attack and cut her arm.

[9] The police arrived about 1:30 a.m. in answer to the aborted 911 call. A.M. answered the door. She had blood on her face, hands and arms and was bleeding from a deep cut on her elbow. A.M. appeared very frightened. She whispered to the officers “get in here, take him out. Take him away”. In a loud voice, she then told the officers that everything was “okay”. The officers entered the residence and, after a brief investigation, arrested the appellant and took A.M. and her son to the hospital.

[10] The Crown acknowledged at trial and on appeal that there were substantial difficulties with the credibility of A.M. She had given several different versions of the events in statements to the police and admitted at trial that she had lied under oath at the preliminary inquiry. She said that she had done so after speaking to the appellant and believing that he would leave her alone if she “softened” her evidence. She was afraid of the appellant, whom she believed had “Russian mob” connections. A.M. had also lied about how she first met the appellant and about her prior criminal record. She had also spoken hundreds of times with the appellant after he was arrested and held in custody. Those communications were arguably inconsistent with her professed fear of the appellant.

[11] There was some independent evidence that could confirm parts of A.M.’s testimony. The 911 call, her physical condition when the police arrived, her torn clothing and underwear, and the state of the house all offered some support for her evidence. There was also evidence independent of A.M. from which the jury could infer that the appellant was prepared to harm A.M. and that she had good reason to be afraid of him.

[12] The appellant did not testify and did not call any defence.

III

The Grounds of Appeal

[13] Counsel for the appellant challenged the convictions on three grounds. He argued that the trial judge:

1. erred in admitting two statements made by J.M. to police officers shortly after the alleged offences;

2. misdirected the jury as to the unanimity requirement as it related to the sexual assault charge; and

3. erred in refusing to grant a mistrial after A.M., in an emotional outburst at the end of her cross-examination, alleged that the appellant had sexually assaulted other women.

(i) The Mistrial Application

[14] We did not require submissions from the Crown on this ground of appeal. The trial judge carefully considered the request for a mistrial. In deciding that a mistrial was not appropriate, he took a number of factors into consideration. These included factors such as the jury’s reaction to the outburst that cannot be effectively reproduced in the written transcript or reviewed by an appellate court. The statement was made in the course of a long and rambling emotional outburst delivered in a low and heavily accented voice. The trial judge observed that the jury had no apparent reaction to the statement. He was entitled to take his observations into consideration in deciding whether an instruction to ignore the outburst would adequately address the appellant’s concerns.

[15] The trial judge’s decision that an admonition to ignore the outburst would protect the appellant’s right to a fair trial does not reflect any error in principle and is entitled to deference in this court. He delivered powerful instructions on more than one occasion telling the jury in no uncertain terms that A.M.’s outburst had no relevance to their deliberations. The appellant has not shown any basis upon which this court should interfere with the exercise of the trial judge’s discretion.

(ii) The Admissibility of the Statements Made by J.M.

[16] J.M. made two statements to the police very shortly after the relevant events. The Crown did not seek to call J.M. as a witness, but instead sought to adduce those statements as evidence of the truth of their contents under the principles first enunciated in R. v. Khan (1990), 1990 77 (SCC), 59 C.C.C. (3d) 92 (S.C.C.).

[17] The trial judge held that the Crown had established the requisite necessity and reliability and admitted the statements. The appellant takes issue with both findings on this appeal. I would hold that the trial judge erred in concluding that the statements cleared the necessity hurdle. My reasons will focus on the parts of the trial record pertaining to the necessity finding. I will not address his reliability finding.

[18] J.M.’s first statement was made to Officer Kelly within three or four minutes of Kelly’s arrival at the house in response to the 911 call. According to Kelly, J.M. told him that the appellant had grabbed him by the throat, pushed him against a wall, and tried to tape his hands with duct tape. Kelly made cursory notes of the conversation shortly after he spoke with J.M. and more detailed notes about four hours later.

[19] The police took J.M. and his mother to the hospital where she received medical treatment. About three hours after the relevant events, Constable Johnson spoke with J.M. at the hospital. Constable Johnson testified that J.M. told her that the appellant grabbed J.M. by the throat more than once and had threatened to kill him and his mother. J.M. went on to tell Johnson that the appellant had duct tape and pulled a piece off the roll and ordered J.M. to put his hands together. J.M. also told Johnson that the appellant had hurt his mother and that his mother had broken a window during the altercation. According to Johnson, J.M. could not remember the order in which the events had occurred.

[20] Johnson made notes of her conversation with J.M. within minutes of the end of that conversation. After making the notes, she read them to J.M. and asked him if he had anything to add. J.M. said he had nothing more to say.

[21] At the time of the trial, J.M. was 10 years of age and in grade five. He was described as an articulate, intelligent child.

[22] From the outset of the investigation, A.M. refused to cooperate with the police in their efforts to interview J.M. and assist him in preparation for giving evidence. She would not permit anyone to discuss the incident with her son and told the police that if they subpoenaed her son to give evidence, she would abscond with him. With two minor exceptions, A.M. would not allow anyone connected with the prosecution to have any contact with J.M.

[23] A.M. testified on the voir dire and confirmed that she would not allow anyone to speak with her son concerning the incident. She said that J.M. had been traumatized by seeing the assault on her and would be further traumatized if required to testify about it. A.M. also said that she was afraid that the appellant would hurt her and her son if they testified. She was prepared to risk that violence as it applied to her, but not to her son. Finally, A.M. testified that her son was afraid of the appellant and had told her that he did not want to testify about the events.

[24] To give credence to her contention that her son had been traumatized by the events, A.M. said that although he had previously been an excellent student, he was now having difficulty in school. She said that his teachers were recommending special help and counselling. The Crown did not adduce any evidence to support this aspect of A.M.’s testimony. Apart from her evidence, there was no evidence as to J.M.’s mental state or the effect of the events on him.

[25] The Crown called Pamela Hurley, a child psychologist. Ms. Hurley was asked for her opinion as to the possible effect testifying could have on J.M. She was asked to assume that J.M. had been assaulted by the appellant and had witnessed an assault on his mother. She was also asked to assume that J.M. knew that his mother was afraid of the appellant and did not want him to testify. Finally, Ms. Hurley was asked to assume that J.M. would be given no assistance in preparation for testifying.

[26] Ms. Hurley had never seen or spoken to J.M. when she first testified. She did not have the benefit of any medical or psychological reports or assessments. Her evidence was understandably very general. Ms. Hurley offered the opinion that all children under age 14 would benefit from preparation before testifying and that all children under that age suffer stress and even distress when testifying in court about traumatic events. Ms. Hurley made it clear that it was very difficult to generalize about the potential effect of testifying on children. She said:

So it’s very difficult to generalize. It’s to do with the individual incident, relationship and what the child has actually experienced or witnessed.

[27] Ms. Hurley also testified that J.M. must have been traumatized to some degree by what he saw during the incident. When asked if he could testify without any preparation, she said:

I would consider that that could cause great distress and emotional harm to that child. I don’t think that that child without adequate preparation would be able to recount details of the event. It could re-traumatize the child by forcing him to think about things that he may have not thought about or tried to push to the back of his mind for a long time. Those memories may not have been accessed with respect to working through them since that child was eight and I don’t know that. But forcing a child who has not talked about it, who is very fearful, who may or may not have a parent who is supportive and reassuring, who is in charge of the situation rather than being fearful of the situation themselves would be difficult also for that child [emphasis added].

[28] This answer demonstrates that Ms. Hurley was required to make assumptions about J.M.’s reaction to the events because she had not had the opportunity to speak with him.

[29] Ms. Hurley acknowledged in her evidence that she could not predict the exact impact of testifying on a child, particularly one she had never spoken to. She was, however, concerned about potential emotional harm. She described various ways in which that harm might manifest itself and concluded:

These are only broad and general areas to be considered and obviously the impact is very individual.

[30] In cross-examination, Ms. Hurley indicated that it was unlikely that a child would be unaffected if required to testify about a traumatic event without any preparation. She said:

What I do know is that forcing a child who isn’t prepared would be distressing.

[31] Between the first and second day of Ms. Hurley’s testimony, she spoke to A.M. A.M. seemed prepared to grant Ms. Hurley access to her son, but indicated she needed time to prepare J.M. before he spoke to Ms. Hurley. Ms. Hurley said that she wished to speak to J.M. that day. A.M. called home and spoke to another individual in a language other than English. Ms. Hurley was then allowed to speak with J.M. for two or three minutes. He told Ms. Hurley he did not want to talk to anybody about the incident. Based on this conversation, Ms. Hurley testified:

Forcing this child to go now I imagine would not be in his best interests and likely could be quite harmful and the other aspect of this is I would be very surprised if he would be able to impart very much evidence given what he is saying, he does not want to talk to anybody else [emphasis added].

[32] In further cross-examination, Ms. Hurley reiterated her opinion that a child in the position of J.M. would “risk trauma or distress” if compelled to testify without any preparation.

[33] During a break in the “Khan” voir dire, A.M. allowed Officer Johnson to meet with J.M for about 10 minutes. Officer Johnson was not allowed to ask J.M. about the events. J.M. told Johnson that he did not want to testify and that he was afraid of the appellant. According to Officer Johnson, J.M. appeared frightened during this conversation.

[34] The trial judge did not find that J.M. would be unable to communicate his evidence if he testified. His finding of necessity was based entirely on his conclusion that J.M. would suffer further emotional trauma if required to testify. On the trial judge’s findings, J.M. had been traumatized by the events of July 18, was afraid of the appellant, knew his mother was afraid of the appellant, and did not want to testify. The trial judge said:

[T]here is the real added danger that by forcing the child to come to court now without the necessary preparation, even if he is not traumatized, there is the real potential for damage to him by forcing him into the witness box. The expert warned about this happening.

[35] Later, the trial judge said:

If I were to force this child to come to court and testify now there is no question in my mind that I would be participating in accentuating the trauma which I find already exists in this child from the evidence I have heard on this application. I find that he is seriously traumatized and by forcing him to testify against his mother’s wishes would only add considerable harm to this child.

[36] The Crown contends that the necessity requirement was met by the trial judge’s finding that J.M. would be traumatized if required to testify. The Crown does not support the necessity finding on any other basis. Specifically, the Crown does not rely on the evidence of Ms. Hurley that J.M. would not be able to effectively communicate his testimony if required to testify in court.

[37] The Crown was in a difficult position. Apart from one brief meeting with Officer Johnson and an even more brief telephone conversation with Ms. Hurley, no one associated with the prosecution had any contact with, or firsthand knowledge of, J.M. in the almost two years between the incident and the “Khan” voir dire. Neither brief contact with J.M. was capable of providing any meaningful insight into the potential effect on J.M. if he testified in the proceedings.

[38] The Crown found itself in this position because it chose to accept A.M.’s decision that her son would not participate in the criminal justice process and that she would not cooperate in any activity that would bring him into contact with any part of that process. While the Crown’s decision is understandable in that its entire case would have collapsed without the evidence of A.M., that decision put the Crown in a position where it had to establish necessity without any firsthand information concerning J.M., except that provided by A.M.

[39] The trial judge accepted A.M.’s evidence on the voir dire. It must be said, however, that it is difficult to accept her evidence without qualification. There is no reason to think that A.M. did not genuinely believe that her son would be emotionally traumatized if required to testify. A.M. was, however, a person who, through her own admission, was willing to lie under oath where doing so suited her agenda at the time. It seems entirely consistent with her conduct throughout these proceedings that she would lie under oath if she thought it necessary to protect her son. The absence of any third party records, such as school records, which could have confirmed at least some parts of her evidence, gives real cause for concern.

[40] It is not necessary to determine whether the trial judge’s assessment of A.M.’s credibility was unreasonable. In oral argument, the Crown acknowledged, properly in my view, that her evidence could not provide a basis upon which to find that A.M. could be emotionally traumatized if required to testify. The Crown acknowledged that this finding rested entirely on the evidence of Ms. Hurley.

[41] There is no presumption of necessity where the out-of-court statement is made by a child. The Crown bears the onus of establishing that it is reasonably necessary to receive the out-of-court statement to obtain a full and frank account of the child’s version of the relevant events: R. v. Rockey (1996), 1996 151 (SCC), 110 C.C.C. (3d) 481 at para. 17 (S.C.C.), per McLachlin J., concurring; Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 76 C.C.C. (3d) 10 at 24 (Ont. C.A.). Where the necessity claim rests on the contention that the child could be traumatized if required to testify, the Crown does not have to demonstrate that psychological trauma is certain or would be serious. The Crown does, however, have to show a real possibility of psychological trauma. I take trauma to refer to something more than discomfort or even distress: Rockey at para. 28, per McLachlin J. concurring.

[42] A finding of necessity, coupled with a finding of reliability, means that the trier of fact will hear potentially incriminating evidence that will not be subjected to cross-examination on behalf of the accused. The fairness of the trial process and the reliability of the verdict reached in that process are potentially at risk where out-of-court statements are admitted for the truth of their contents and the maker of the statements does not testify. The cogency of the evidence required to establish necessity should reflect the importance of the decision being made: R. v. Parrott (2001), 2001 SCC 3, 150 C.C.C. (3d) 449 at para. 73 (S.C.C.).

[43] Where the Crown’s necessity argument is based on the contention that the child will be traumatized if required to testify, the Crown almost inevitably relies on an assessment of the child prepared by a qualified expert who has had an opportunity to speak with and evaluate the child: Rockey, supra; R. v. Olsen (1999), 1999 1541 (ON CA), 131 C.C.C. (3d) 355 (Ont. C.A.); R. v. R.(R.) (2001), 2001 27934 (ON CA), 159 C.C.C. (3d) 11 (Ont. C.A.), aff’d (2003), 2003 SCC 4, 171 C.C.C. (3d) 575 (S.C.C.).

[44] In the seminal case of R. v. Khan, supra, McLachlin J. described the reach of the necessity principle in these terms (at 104-105):

Necessity for these purposes must be interpreted as “reasonably necessary”. The inadmissibility of the child’s evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity [emphasis added].

[45] Khan does not hold that a psychological assessment of the child is essential where the Crown relies on risk of trauma to support its necessity claim. Necessity may be made out in other ways. For example, if the child takes the witness stand, the real risk of psychological harm may be evident to the trial judge from the child’s demeanour in the witness stand and the child’s response to questions: see e.g. R. v. F.(W.J.) (1999), 1999 667 (SCC), 138 C.C.C. (3d) 1 at paras. 45-47 (S.C.C.). I think it will be a rare case, however, where the Crown can establish necessity based on the potential of psychological trauma without a proper assessment of the child by a qualified expert, unless the trial judge has had the opportunity to see the child’s reaction to questioning in the courtroom setting.

[46] Ms. Hurley’s opinion evidence could not establish the required necessity. Ms. Hurley testified that the reaction of children who were required to testify about traumatic events varied widely and was very much dependent on the individual child. She could not offer an individualized assessment of J.M., but could only describe in general terms the spectrum of reactions that children could have when required to testify about traumatic events. On her evidence, virtually all children who were required to testify without adequate preparation would suffer some negative effects. She used various terms to describe these potential effects ranging from “trauma” to “emotional harm” to “distress”. Ms. Hurley quite understandably could not offer any opinion as to where along this spectrum of potential reactions J.M. might fall. Not all points along that spectrum would justify a finding of necessity.

[47] Absent an evidentiary link connecting Ms. Hurley’s general evidence about the potential negative effects testifying may have on children and specific evidence about J.M.’s emotional and psychological state, it was not open to the trial judge to rely on Ms. Hurley’s evidence to find that requiring J.M. to testify would “add considerable harm to this child”.

[48] The trial judge’s finding of necessity in the absence of any psychological assessment by a qualified expert and in the face of A.M.’s determined effort to keep her son beyond the reach of the criminal process is perhaps explained by this observation in the trial judge’s reasons:

a child in these circumstances should be protected and his evidence taken if possible through other means, especially where there is a principle established for the receipt of such evidence should it be found necessary and of course reliable [emphasis added].

[49] This statement suggests a preference for receiving the child’s evidence by way of the out-of-court statements. The law is to the opposite effect. In-court testimony is the preferred mode of obtaining a witness’s version of events. Out-of-court statements are received only where they are the only means available to put the witness’s full account before the jury: R. v. O’Connor (2002), 2002 3540 (ON CA), 170 C.C.C. (3d) 365 at para. 57 (Ont. C.A.).

[50] The Crown chose to accede to the position taken by A.M. with respect to her son. In doing so, it put itself in a position where it could not demonstrate the requisite necessity. The out-of-court statement should not have been received.

[51] In argument, Mr. Hicks conceded that J.M.’s statements added nothing to the Crown’s case on the sexual assault allegation. He conceded that the sexual assault conviction should stand even if J.M.’s statements were wrongly admitted. The sexual assault conviction provides the predicate offence for the dangerous offender finding and the imposition of an indeterminate sentence. For the reasons I will set out below, I am satisfied that the dangerous offender designation and the indeterminate sentence were properly made and imposed. As the ultimate disposition is not affected by the erroneous admission of J.M.’s statements, I can address the application of the curative proviso, s. 686(1)(b)(iii), briefly.

[52] A.M. gave direct evidence to support all of the allegations in the indictment. The trial judge repeatedly told the jury to approach her evidence with caution and to look for independent confirmatory evidence. He reminded the jury of her many inconsistent statements and prior perjury. The acquittals on some counts are a clear indication that the jury was not prepared to rely on all of A.M.’s testimony.

[53] There was abundant physical evidence to support the claim that A.M. was assaulted by the appellant shortly before the police arrived at her home in response to the 911 call. While the jury clearly did not accept some of the details of the alleged assault (they acquitted on the charge of assault with a weapon), no reasonable jury would have had a doubt as to whether A.M. was assaulted by the appellant. One of J.M.’s statements did refer to an assault on his mother. I do not think that eliminating this one piece of evidence from the mass of independent physical evidence supporting the assault allegation could possibly have made any difference. In my view, the admission of J.M.’s statements caused no substantial wrong or miscarriage of justice insofar as the appellant’s assault conviction was concerned.

[54] The confinement convictions are different. J.M. gave evidence that at one stage the appellant was in the process of tying his hands with duct tape. A crinkled piece of duct tape was found at the scene. In my view, a jury could have resorted to J.M.’s statement, in combination with the evidence of the crinkled duct tape, to confirm A.M.’s evidence about the confinements. The verdicts on those counts would not necessarily have been the same had the jury not heard the contents of the statements made by J.M. I would quash the two unlawful confinement convictions.

(iii) The Unanimity Instruction on the Sexual Assault Charge

[55] In her evidence, A.M. described a continuous series of events in her home during which she was repeatedly assaulted by the appellant over a time period of about an hour and a half. She was not certain of the order of the events during the assaults. A.M. testified that at one time during the assaults, the appellant grabbed her blouse, ripped it open and ripped her skirt. He dragged her into the kitchen where he threw her against the desk and then against the refrigerator. He grabbed a knife and forced A.M. to perform fellatio at knifepoint while holding her hair tightly. He ejaculated into her mouth. A.M. also testified that at another time during the attack, the appellant flung her onto her bed in the bedroom and demanded that she perform fellatio. He also threatened her with anal intercourse.

[56] In explaining the unanimity requirement as it applied to the sexual assault charge, the trial judge referred to the evidence of the various events in the kitchen and in the bedroom that could constitute a finding of sexual assault. He then said:

You need not be satisfied beyond a reasonable doubt that all incidents happened before you would convict of sexual assault. You need not all be satisfied beyond a reasonable doubt that the alleged sexual assault in the bedroom occurred and that the sexual assault in the kitchen occurred. It would be open for some of you to find, beyond a reasonable doubt, that the alleged sexual assault in the bedroom occurred, namely, by the grabbing of her and demanding fellatio or the grabbing of her and threatening anal or vaginal intercourse in the bedroom, which would be sufficient for a conviction for sexual assault, while others may not be satisfied that those events took place in the bedroom, however, they would be satisfied beyond a reasonable doubt that the accused grabbed the complainant in the kitchen and forced her to perform fellatio there.

Therefore, you need not all use the same evidentiary route to arrive at your conclusion that a sexual assault occurred. However, you must all be in agreement that a sexual assault occurred in the house, either in the kitchen, or in the bedroom, or in both places, before you could convict of sexual assault.

If you were satisfied beyond a reasonable doubt that any of these alleged occurrences of sexual assault took place, no matter where in the house they took place, then you’d find the accused guilty. If you were not satisfied beyond a reasonable doubt that any of these alleged occurrences of sexual assault took place then you’d find the accused not guilty [emphasis added].

[57] On this instruction, the jury would convict the appellant of sexual assault if all members of the jury were satisfied that A.M. was sexually assaulted at some point in time during the attack on her in her home. The jury could have convicted, although all twelve did not rely on the same act to establish the requisite sexual assault.

[58] Counsel for the appellant renewed the contention made at trial that the trial judge misdirected the jury as to the unanimity requirement. Counsel submits that where, as in this case, there is evidence of more than one distinct act committed by the appellant that is capable in law of amounting to a sexual assault, the jury must be told that they can only convict if they are all satisfied that the appellant committed the same act relied on to establish the sexual assault. He contends that this jury should have been told that it could convict if all twelve were satisfied that the appellant assaulted A.M. in the bedroom, or if all twelve were satisfied that the appellant assaulted A.M. in the kitchen, or if all twelve were satisfied that the appellant assaulted A.M. in both places. The jury should have been told, however, that if some were satisfied that A.M. was assaulted in the kitchen, but not the bedroom and the remainder were satisfied that she was assaulted in the bedroom, but not in the kitchen, they could not convict on the sexual assault charge.

[59] Counsel for the appellant does not suggest that the jurors must be unanimous as to the evidence they rely on in arriving at a verdict. For example, where there is direct evidence from one witness implicating an accused and circumstantial evidence from other sources pointing to guilt, counsel acknowledges that the jury can convict even though some of the jurors rely on the direct evidence and others rely on the circumstantial evidence: R. v. Bouvier (1984), 1984 3453 (ON CA), 11 C.C.C. (3d) 257 at 264 (Ont. C.A.), aff’d (1985), 1985 17 (SCC), 22 C.C.C. (3d) 576 (S.C.C.); R. v. Morin (1988), 1988 8 (SCC), 44 C.C.C. (3d) 193 at 210-11 (S.C.C.). Counsel distinguishes between evidence to prove a material fact and the material fact itself. He submits that the jury must agree on the material facts before it can convict. He further contends that the act said to amount to the actus reus of the offence alleged is a material fact.

[60] The policy justification underlying the appellant’s argument is best put by M. Gelowitz, “Jury Unanimity on Questions of Material Fact: When Six and Six Do Not Equal Twelve” (1987) 12 Queen’s Law Journal 66 at 100:

[A] jury that comes to a common conclusion of guilt on different bases of material fact are not sufficiently unanimous to convict an accused. Since such a jury is not, as a whole, convinced beyond a reasonable doubt of any theory of the Crown, there is not the necessary basis of fact upon which to ground a conviction; the jury is hung. Mere agreement as to some vague idea of guilt is not sufficient to render a lawful verdict – there must be unanimity on the fundamental actus reus of the offence. In the absence of this unanimity, the Crown has not proved its case [emphasis added].

[61] The appellant’s argument relies heavily on R. v. Brown (1983), 79 Cr. App. R. 115 (C.A.). In Brown, the accused was charged with fraudulently inducing investors to purchase shares in a company. The prosecution provided particulars in which five specific misrepresentations were alleged. The trial judge told the jurors that before they could convict, they had to unanimously conclude that the accused had dishonestly made the statements that induced the victims to invest in the company. The trial judge went on to instruct that if each of the jurors were satisfied that the appellant had made at least one of the false representations, it was not necessary for them to all agree that any one of the alleged misrepresentations had been made.

[62] The Court of Appeal held that the trial judge had not accurately described the unanimity requirement. The court said (at 119):

In a case such as that with which we are now dealing, the following principles apply: 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury … 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury must be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged [emphasis added].

[63] Brown has been applied in several subsequent English decisions.[^1] Those cases, however, suggest that Brown is not applicable in every case where there is evidence of more than one potential actus reus. At least some of these authorities appear to limit Brown to situations in which the acts that could constitute the actus reus are “completely different acts happening at different times”: R. v. Boreman, [2000] 1 All E.R. 307 at 317 (C.A.); or where the different acts give rise to distinct defences: R. v. Carr, [2000] 2 Cr. App. R. 149 at 157-58 (C.A.).

[64] It would be artificial in the extreme to suggest that the events as described by A.M. amounted to “completely different acts” committed at different times. On her evidence, she was being assaulted, sometimes sexually, as she was being hauled, thrown and pushed from place to place in her home. The appellant also did not advance different defences to the various parts of A.M.’s testimony. His defence was the same throughout: nothing A.M. said should be believed.

[65] A strong argument can be made that even if Brown is accepted, the instruction in this case was not wrong in law. This would seem to be the position of Professor Smith, a supporter of Brown. In “Satisfying the Jury” [1988] Crim. L. R. 335 at 342, he observes:

A related problem arises where the whole jury (or a magistrate) is satisfied that the defendant committed the crime charged either on occasion (a) or occasion (b) but finds it impossible to say which. If the two occasions are closely associated in time and are “part of the same transaction” it seems the conviction is good [emphasis added].

[66] On Professor Smith’s approach to Brown, the jury could convict the appellant if all twelve were satisfied that he had sexually assaulted A.M. in the bedroom or in the kitchen. This was the net effect of the instruction given by the trial judge.

[67] Whatever the fate of the appellant’s argument in England, Brown has not been followed in Canada. In my view, Brown is inconsistent with the approach to unanimity adopted in the Supreme Court of Canada, this court and other provincial appellate courts.

[68] The decisions of the Supreme Court of Canada in Thatcher v. the Queen (1987), 1987 53 (SCC), 32 C.C.C. (3d) 481 (S.C.C.) and Morin, supra, while not dealing with the exact issue raised on this appeal, do address the concept of jury unanimity. In Thatcher, the Crown alleged that Thatcher had either killed his wife himself or had arranged for someone else to kill her. The defence argued that the jury should have been told that it had to be unanimous as to Thatcher’s mode of participation in his wife’s killing before they could convict him of murder. Dickson C.J.C., writing for the majority, rejected this contention. He held that s. 21 of the Criminal Code specifically made the mode of participation in an offence irrelevant to culpability. He said (at 511):

It follows, in my view, that s. 21 precludes a requirement for jury unanimity as to the particular nature of the accused’s participation in the offence. Why should the juror be compelled to make a choice on a subject which is a matter of legal indifference [emphasis added]?

[69] The Chief Justice also responded directly to the suggestion that sound criminal law policy required that jury unanimity extend to the mode of participation, observing that the administration of justice would be brought into disrepute if an accused was to be acquitted even though every juror was convinced that he had committed the crime in one of two ways, but were not agreed on which of the two ways he had committed the crime.

[70] The analysis of Thatcher applies in this case. Given the definition of sexual assault and the wording of the sexual assault charge, it is a matter of “legal indifference” where in the house A.M. was assaulted or which of the various acts occurred.[^2]

[71] In Morin, the court was concerned with the approach a jury should take to the assessment of evidence and specifically whether it should apply the reasonable doubt standard to individual pieces of evidence or to the entirety of the evidence. Sopinka J., for the majority, held that the burden of proof was applied to the totality of the evidence. In explaining why it could not be applied to individual pieces of evidence, he said (at 210):

In principle, it is wrong because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual member of the jury to rely on the same facts in order to establish guilt. The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed, the jurors need not agree on any single fact except the ultimate conclusion [emphasis added].

[72] Applying Morin to this case, I think it was open to the jury to reach different factual conclusions concerning the act that constituted the sexual assault as long as the act was within the four corners of the indictment. The jury could, of course, convict only if all were agreed that the appellant had sexually assaulted A.M. during the incident in the house.

[73] Prior to the judgment in Morin, this court had taken the same approach to jury unanimity in a number of cases. Indeed, at p. 210, Sopinka J. relied on three Ontario decisions in holding that the jury need not agree on facts but only on the ultimate conclusion. These included Bouvier, supra.

[74] In addition to the Ontario authorities referred to above, Crown counsel relied on R. v. Dool, [1987] O.J. No. 564 (C.A.). In Dool, the accused was charged with first degree murder. The Crown argued that he had committed murder in the course of sexually assaulting and/or forcibly confining his young victim. It was argued on appeal that the jury should have been told that it had to be unanimous as to the predicate offence before it could convict the appellant of first degree murder. This court rejected that argument in a brief endorsement referring to Thatcher, supra. The result in Dool cannot stand beside the appellant’s contention that the jury must be unanimous as to the facts which make up the actus reus of an offence.

[75] The analysis provided in R. v. Pearson (1994), 1994 5433 (QC CA), 89 C.C.C. (3d) 535 (Que. C.A.), leave to appeal refused (1994), 90 C.C.C. (3d) vi, is also inconsistent with the appellant’s submission. In Pearson, the accused was charged with trafficking in a narcotic. The relevant definition provided that trafficking could be performed in a variety of ways, including manufacturing, selling or giving the narcotic to another. In describing the unanimity requirement, the trial judge told the jury that they could convict only if all jurors were satisfied that the accused had trafficked in a narcotic. They could, however, come to that conclusion based on different acts and different definitions of trafficking. The Quebec Court of Appeal upheld that instruction. After a review of Thatcher and some academic commentary, Fish J.A. observed (at 566-67):

The task of the jury is to decide, beyond a reasonable doubt, whether the offence has been committed; the further question of what specific act was accomplished in the commission of the offence need not be decided unanimously [emphasis added].

[76] Fish J.A. further observed (at 568):

The appellant is not entitled to an acquittal on the ground of uncertainty whether all members of the jury characterized his actions in the same way. The operative questions are whether they were given a proper definition of trafficking and whether they all agreed that appellant’s conduct fell, beyond a reasonable doubt, within that definition. If the answers to both those questions are affirmative, it follows that the verdict of the jury amounts to a unanimous conclusion that the appellant was guilty beyond a reasonable doubt of the offence of trafficking.

[77] In this case, the appellant does not take issue with the trial judge’s definition of sexual assault. On the unanimity instructions given by the trial judge, the jury could only convict if they were all satisfied that the appellant’s conduct during the incident fell within that definition. As observed by Fish J.A., this is all the unanimity requirement demands.

[78] Brown was specifically rejected by the majority of the British Columbia Court of Appeal in R. v. G.(L.M.) (1999), 1999 BCCA 467, 138 C.C.C. (3d) 383. In that case, the accused was charged with a single count of indecent assault. The Crown alleged a continuing offence which occurred over four years. The Crown led evidence of four incidents, any one of which could provide sufficient proof of the offence. The appellant argued that in accordance with Brown, the jury should have been told that before it could convict, all twelve of the jurors had to be satisfied beyond a reasonable doubt that the same act or acts capable of constituting an indecent assault had been committed by the appellant.

[79] Ryan J.A. began her analysis by concluding that the charge as laid related to a single transaction and complied with s. 581(1) of the Criminal Code. She next observed that there had been no suggestion at trial that the count should be divided as provided for in s. 590(3) or that the appellant’s defence was in any way prejudiced by the Crown proceeding on a single count. Ryan J.A. held that once it was accepted that the charge was properly laid in a single count, the appellant’s unanimity argument could not be accepted. She said (at paras. 25-28):

It is important to keep separate the concept of “essential ingredients” from the facts which provide proof of them.

Essential elements, or ingredients of an offence are found in the statute which defines the offence. Essential ingredients must be proved beyond a reasonable doubt. In reaching the ultimate conclusion with respect to an ingredient jurors may take different routes to conviction and need not rely on the same facts.

In the case at bar the appellant was charged with the indecent assault of a male. The Crown alleged a continuing offence which occurred over a period of four years. As noted earlier, the important feature of a continuing offence is that it can be seen as one offence comprised of one or more incidents. The facts led by the Crown as proof of the indecent assault were four incidents, any one of which would provide sufficient proof of the essential ingredients of the offence, that is, the indecent assault of a male. The four sexual touchings offered in evidence by the Crown in this case were simply facts which supplied proof of the essential ingredients. Thus, to have directed the jury that all twelve jurors had to find that there was an indecent assault on a “common single fact”, i.e. one of the touchings, would have flown directly in the face of the law as stated by the Supreme Court of Canada in Thatcher and Morin [emphasis added].[^3]

[80] The approach favoured in R. v. G.(L.M.) has strong application to the facts of that case. There can be no suggestion that the various acts described by A.M. did not occur in the course of a single transaction. Nor is there any suggestion of any prejudice to the defence by the way the charge was worded. A unanimous finding by the jury that the appellant sexually assaulted A.M. at some point in time during the incident described by her fulfils the purpose underlying the unanimity requirement. The appellant is convicted, but only after the jury has unanimously determined that he committed the crime as alleged against him. The fact that they may not have agreed on factual specifics does not derogate from their unanimous finding of culpability on the charge as laid.

[81] The approach taken in R. v. G.(L.M.) tracks closely that of the majority in R. v. Mead and Molloy, [2001] NZCA 228 (C.A.). The accused were charged with wilfully mistreating a child in a manner that was likely to cause the child suffering. The Crown provided particulars of various events which it said established that the child was mistreated in a manner that caused unnecessary suffering. The appellants argued that the jury should have been told that it was necessary that it be unanimous as to the proof of the factual basis upon which a finding of ill treatment was made.

[82] The majority of the court rejected this submission at paras. 72-73 holding that:

It is, therefore, an egregious error to seek to elevate the form the ill treatment might take into an ingredient of the offence which must be proved beyond a reasonable doubt to the satisfaction of the whole jury. The key requirement is that there is probative evidence on which a jury can be satisfied to the requisite standard of proof that the child was wilfully ill treated in a manner likely to cause him or her unnecessary suffering.

The fact that the evidence may disclose a number of forms of incidents of ill treatment does not alter this basic principle. It matters not that one half of the jury may conclude that the ill treatment took one form of cruelty and the other half conclude that it took a different form if all twelve jurors are satisfied beyond reasonable doubt that the accused wilfully ill treated the child so as to cause him or her unnecessary suffering. The core of the offence lies in the cruelty, not the particular form it may have taken [emphasis added].

[83] Chief Justice Elias dissented and would have required a Brown instruction. She did, however, observe at para. 36:

Where the Crown case relies on a continuous course of conduct entailing actions of the same character, it is not necessary for particular incidents to be proved.

[84] On the evidence in this case, the appellant’s attack on A.M. was “continuous” and involved “actions of the same character”.

[85] My analysis of the authorities compels me to conclude that it would have been wrong for the judge to instruct the jury that it could convict only if all twelve were satisfied that the same act, which was said to amount to a sexual assault, had occurred. The unanimity requirement was fully served if all of the jurors were satisfied that A.M. was sexually assaulted at some point during the attack on her by the appellant in her home on the evening of July 18.

IV

The Imposition of the Indeterminate Sentence

[86] Counsel for the appellant does not challenge the finding that the appellant met the criteria for a dangerous offender set out in s. 753(1)(b) of the Criminal Code. He submits, however, that the trial judge failed to consider the long-term offender provisions before declaring the appellant a dangerous offender and imposing an indeterminate sentence. Counsel contends that there was some evidence from which it could be concluded that there was a reasonable possibility that the appellant could eventually be controlled in the community. Counsel argues, relying on R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.), that this evidence requires a new dangerous offender hearing where the long term offender provisions can be addressed.

[87] This case is quite different from Johnson. In Johnson, the long-term offender provisions came into effect after the offence was committed and the trial judge held (wrongly as it turned out) that those provisions had no application. The long-term offender provisions were not addressed at the trial level in Johnson. The predicate offence committed by the appellant occurred after the long-term offender provisions came into effect and their applicability to this application was never in dispute. The statutory preconditions to a finding that a person is a long-term offender were specifically canvassed in the psychiatric material prepared for the appellant’s dangerous offender hearing.

[88] It is true that Walters J. did not refer to the long-term offender provisions in her reasons for disposition. It is not, however, reversible error to fail to mention a relevant statutory provision or legal principle. The appellant must convince this court that the failure to refer to these provisions demonstrates a failure to consider them.

[89] On appeal, Crown counsel argues that the absence of any reference to the long-term offender provisions in the reasons reflects the evidence and the arguments. He contends that it was never suggested that if the appellant met the dangerous offender criteria, he was potentially treatable in the community. Crown counsel points out that counsel for the appellant at trial did not refer to the long-term offender provisions in argument.

[90] The potential applicability of the long-term offender designation to the appellant depended on the conditions set out in s. 753.1(1)(c):

The court may … find an offender to be a long-term offender if it is satisfied that …

(c) there is a reasonable possibility of eventual control of the risk in the community.

[91] The danger to the community posed by the appellant, who had been diagnosed a psychopath, was beyond dispute. Very little in the mass of psychiatric evidence produced suggested that the appellant was treatable at all, much less in a community setting. The only evidence offering some glimmer of hope was a ten year old clinical assessment. The trial judge rejected that assessment as it did not reflect the appellant’s violent conduct in the ten years since the report was produced and was entirely inconsistent with the rest of the evidence. The trial judge expressly found that (at paras. 80-81):

• attempts to treat the appellant would not be effective and could be detrimental;
• there is no recognized or effective treatment for a person whose psychopathy checklist score is as high as the appellant’s; and
• there was no evidence that the appellant’s risk of re-offending could be reduced over a certain period of time or if he was given a certain mode of treatment.

[92] These findings rendered the long term offender provisions inapplicable to the appellant and fully explain the trial judge’s failure to discuss those provisions in her reasons.

V

Conclusion

[93] I would allow the conviction appeal to the extent of quashing the convictions on the two unlawful confinement charges. I would order a new trial on those charges. It is, of course, up to the Crown to determine whether to proceed with a new trial on those counts.

[94] I would dismiss the appeal from the finding that the appellant was a dangerous offender and I would affirm the imposition of an indeterminate sentence.

RELEASED: “SEP 29 2004” “DD”

“Doherty J.A.”

“I agree J.I. Laskin J.A.”

“I agree R.G. Juriansz J.A.”

• A non-publication order pertaining to the identification of A.M. and her son J.M. is in effect.

[^1] Those decisions are collected in P.J. Richardson, ed., Archbold: Criminal Pleading, Evidence and Practice (Toronto: Carswell, 2004) at 474-76. The House of Lords declined to comment on the correctness of Brown in R. v. More (1986), 86 Cr. App. R. 234 (H.L.)

The approach in Brown found favour in KBT v. The Queen (1997), 72 ALRJ 116 (H.C.A.).

[^2] In Thatcher at pp. 513-14, Dickson C.J.C. referred to Brown, indicating that “if Brown is correct”, it was distinguishable from Thatcher.

[^3] McEachern C.J.B.C. dissented, but did so on the basis that the allegations did not constitute one transaction.