W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
DATE: 20050629
DOCKET: C40813
COURT OF APPEAL FOR ONTARIO
WEILER, GOUDGE and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Diane Magas
For the appellant
Respondent
- and -
SETH QUASHIE
Leslie Paine
For the respondent
Appellant
Heard: February 16, 2005
On appeal from the convictions entered on March 23, 2003 and sentence imposed October 23, 2003 by Regional Senior Justice Monique Métivier of the Superior Court of Justice, sitting with a jury.
GILLESE J.A.:
1Seth Quashie, the appellant, was charged with two counts of aggravated sexual assault, one alleged to have been committed on November 22, 2000 and the other on November 24, 2000. On March 23, 2003, a jury convicted the appellant of the lesser and included offences of sexual assault, for the events that occurred on November 22, 2000, and sexual assault causing bodily harm, for the events that occurred on November 24, 2000.
2On October 23, 2003, the appellant was sentenced to a total of five years incarceration: two years in the penitentiary for the sexual assault conviction and three years consecutive for the sexual assault causing bodily harm conviction.
3He appeals from conviction and seeks leave to appeal against sentence.
BACKGROUND
4At the time of the offences, the complainant was 19 years old. She was a Nigerian who moved to Ottawa in 1997 to pursue her university education. She adhered to traditional Nigerian cultural values, which precluded sex before marriage, and was a virgin at the time of the first alleged assault.
5The appellant was born in Trinidad and Tobago and came to Canada in 1997. He was 21 years old at the time of the alleged assaults. He had graduated from high school and was employed. He had no prior criminal record.
6The appellant and complainant first met on November 11, 2000, outside a bar in downtown Ottawa, Ontario. They spoke on the phone on several occasions before agreeing to meet on the night of November 22, 2000, to go to a movie.
7On November 22, 2000, the complainant met the appellant at a bus stop near her university residence at around 8:00 p.m. The two went back to her residence, where she lived with her older brother and two other males. After arriving at the residence, they ended up in the complainant’s bedroom. The testimony of the appellant and complainant differ drastically as to what occurred thereafter. The complainant and the appellant next saw one another on November 24, 2000. Again, their testimony about what transpired that evening differs dramatically.
November 22, 2000 – the Complainant’s Version of Events
8According to the complainant, after meeting the appellant at the bus stop, he engineered his way into her university dormitory on the pretence that he had never seen a university residence before. Once in the bedroom, the appellant asked to use the washroom and the complainant showed him where it was. When he came back from the bathroom, he asked the complainant for a glass of water. When she went to the kitchen to get the water, she saw her brother. She took the glass of water back to the bedroom. The appellant complained that the room was too hot. She asked if they were going to the movie and he asked if she liked him. He asked her to be in an “open” relationship with him, one in which each of them would see other people. She refused. She said that even if she wanted to date, she would not have an open relationship. Then the appellant turned off the lights. The complainant turned them back on. This exchange happened several times.
9The appellant then pushed the complainant onto the bed. The appellant held her hands over her head and, while holding her hands with one of his, pinned her down with one side of his body. He undid her jeans, pulled them down and inserted his fingers into her vagina. She told him to stop and was struggling. The complainant cried out in pain. She continued to ask him to stop. He took his penis out of his pants and asked her to “suck his dick”. She said “no” and asked him to get off of her. The appellant then pulled the complainant’s underwear to the side and tried to penetrate her. It was at this point that the complainant noticed that the appellant was wearing a condom. The complainant cried out in pain when the appellant attempted to penetrate her, though not loudly enough for anyone in the apartment to hear because, she said, she would have been too embarrassed if her brother or roommates had come into the room. After a few minutes, the appellant’s grip on the complainant loosened and she pushed him off. He got up and seemed angry.
10The complainant walked the appellant out of her residence to the bus stop. She testified that she did that because she was afraid of the appellant. She said that on the way to the bus stop, she passed her brother and said to him “This is Emmanuel”. She said that because she wanted her brother to see the appellant so he could recognize him as he had just assaulted her.
11When the complainant returned home, she telephoned her friend, J. and told her that she and the appellant had had sex. The complainant testified that she did not tell J. that she had been assaulted as she felt that J.’s reaction to her disclosure showed that J. “judged” her.
November 22, 2000 - the Appellant’s Version of Events
12The appellant testified that the sex was consensual. He said that when he got to the complainant’s dormitory room, he and the complainant began kissing. He undid her blouse and began rubbing her breast. The appellant then excused himself and went to the washroom to wash himself as he intended to ask the complainant for oral sex. When he came back to the bedroom the complainant told him to lock the bedroom door behind him. The appellant locked the door and turned off the light. The appellant then started rubbing the complainant’s vagina outside her jeans. He felt the complainant was responding so he used his fingers to penetrate her. He encountered difficulty on attempting to penetrate her digitally with two fingers and thought perhaps she had told him the truth when she said she was a virgin. He said that he begged the complainant to perform oral sex on him but she refused. He also testified that she did not know what he meant when he asked her to “go down on him”. The appellant then pulled the complainant’s underwear to the side so that he could penetrate her and she asked if he had a condom. The appellant took a condom from his pants and put it on his penis. The appellant began to penetrate the complainant when there was a knock at the door and the complainant stated, “Be quiet, it’s my brother”. After several moments, the person went away. The appellant continued to attempt to penetrate the complainant but the complainant dug her nails into his back, which he had told her to do to show that she was in pain. After awhile, he decided, “That’s enough for today” and stopped. He then left the residence.
November 24, 2000 –the Complainant’s Version of Events
13The complainant testified that the appellant telephoned her on November 23, 2000, and she hung up on him. The following day, the appellant called again saying he wanted to apologize in person about what had happened on the evening of the 22nd. Thinking he was sincere, the complainant agreed to speak with him, but refused to go to his apartment. Instead, she agreed to meet him at the bus stop near his apartment. She then called her friend, J. and gave her the appellant’s phone number and asked that J. call the appellant’s house in two hours to make sure that she was all right.
14When the complainant arrived at the bus stop, she called the appellant from a pay phone and asked him to meet her. He said that he was sick and it was too cold and again invited her up to his apartment, giving her his apartment number. She refused. However, it was cold outside, so when five or ten minutes had passed and the bus had not arrived, she decided to go to his apartment. She mistakenly went to the apartment of a friend of the appellant, who lived in a nearby building. The friend took her to the appellant’s apartment building.
15The complainant testified that after she arrived at the appellant’s apartment, he excused himself and went into the washroom. When he returned from the washroom he asked if she was angry and began rubbing her chest. The complainant stood up and the appellant continued to rub her chest from behind. The appellant then pushed her onto the bed. He had a firm grip on her and the complainant told him to let her go. He pinned her hands and pulled off her pants. The appellant asked the complainant to perform oral sex on him, which she refused. The complainant began struggling and screaming, but the appellant penetrated her anyway. He pushed her legs up towards her stomach, causing the complainant a great deal of pain. The complainant was crying and asking him to stop. At one point the appellant said, “Oh shit” as the condom had broken. The complainant eventually managed to push the appellant off of her.
16When the complainant went to leave the apartment the appellant told her that he was HIV positive. She stood in shock until she grabbed the appellant’s collar at which point he told her to “be careful”. He then grabbed a kitchen knife and pointed it at her. The appellant told the complainant he was going to walk her to the bus stop so she wouldn’t “get any smart ideas”. The complainant walked down the stairs out of the apartment building and the appellant followed her down the stairs, laughing at how much trouble she was having walking. The appellant said it was “payback” for her refusing to date him. Once at the apartment door, the appellant refused to walk her any further.
17The complainant then called a male friend who arranged for her to go to his home. When she arrived, she would not talk to him and ran up the stairs crying. He followed her up the stairs and found her lying on the floor, crying. He suspected that she had been assaulted and when she would not respond to his questions, he called the police. The police arrived and took the complainant to a sexual assault centre where she was examined.
November 24, 2000 – the Appellant’s Version of Events
18The appellant testified that the complainant called him on November 22, 2000, after the first incident, and they spoke for half an hour. The appellant said that he called the complainant on the night of November 24, 2000, but claimed that he did not invite her to his apartment, as his girlfriend was coming over.
19The appellant testified that when the complainant arrived at his apartment on November 24, 2000, he was surprised to see her because he had not told her his apartment number. When the appellant let her into the apartment, the complainant started talking about having a serious relationship with him. The appellant listened to the complainant and “played along” because he wanted to have sex with her before his other girlfriend arrived. He claimed that they had consensual sex, trying different positions to lessen the pain for the complainant. He said that the complainant reminded him to wear a condom, so he put one on. At some point during intercourse, the condom broke and the appellant removed his penis and ejaculated outside the complainant.
20After the appellant and complainant finished having intercourse, the appellant wanted the complainant to leave. The complainant told the appellant she had feelings for him, and the appellant told her she couldn’t have feelings for him because she didn’t even know him. He said that the complainant erroneously thought his name was Emanuel. The appellant stated that to emphasize to the complainant that she did not know him, so he said to her, “What if I was to tell you that I’m HIV positive?” He said that he made a joke about being HIV positive as a way of getting rid of the complainant before his girlfriend arrived. The complainant asked if the appellant was joking and he said he was not. The complainant grabbed a large kitchen knife and then grabbed the appellant by the shirt. She held the knife up to the appellant and the appellant took the knife from her and told her to leave. He said that he walked her out of the apartment building but refused her request that he walk her to the bus stop. Once the appellant saw her out the door, he locked the door behind her and went back to his apartment.
The Testimony of the Complainant’s Brother
21The complainant’s older brother testified that he returned home from studying on the evening of November 22, 2000, to watch a television show. He said that while he was watching television, he saw his sister in the kitchen. After watching television for a period, he called out to the complainant and got no answer so he went to her room and knocked on the door. When he got no response, he tried to open the door and found it locked. He then placed his ear against the door, heard music and voices, and called out the complainant’s name again but there was no response.
22Shortly after, he left the residence to return to studying but then realised that he had forgotten to return a movie, as he was returning to the residence to pick up the movie, he passed the complainant and the appellant as they walked to the bus stop. He spoke to the complainant and the appellant nodded at him.
Testimony of the Complainant’s Friend J.
23J. was with the complainant on November 11, 2000, the night she first met the appellant. J. testified that the complainant called her late on the night of November 22nd and told her that she and the appellant had had sex. She asked her if she had used a condom to which the complainant replied that they had and that she had thrown the condom out in the garbage in her room. She also asked how the appellant was in bed, to which to complainant replied, “Okay”.
24J. also spoke to the complainant on the phone on November 24th. The complainant called J. before she met with the appellant and told her that the appellant was supposed to come over to her residence and pick her up. The complainant called back shortly after, at approximately 10 p.m., and told her friend that he was not coming and that she was going to go over to his house on her own. She then gave J. the appellant’s number and told her to call there at 1:30 a.m., as she had to work the next day. J. called the appellant’s house at 2 a.m., but got no response.
25J. called the appellant's house the next day, November 25, 2000, looking for the complainant, whom, she had discovered, had not shown up for work. When she first called the appellant’s house, he or someone with a voice that sounded like his, answered the phone and told her there was no such person there. She called back again and this time spoke to the appellant, who said the complainant had been at his house the night before, but only for a few moments. J. finally contacted the complainant at a friend’s house, at which time the complainant told her that the appellant had raped her.
The Medical Evidence
26The complainant was taken to the Sexual Assault Centre at the Ottawa Civic Hospital, and examined by Christine Wood, a registered nurse and designated sexual assault nurse examiner. The complainant was extremely upset and in considerable pain during the examination which revealed the following injuries: a 1‑2 mm. tear of the labia minora; a 3‑4 mm. tear at the posterior fourchette; three 1‑2 mm. tears to the hymen; bruising of the cervix; extensive bruising and swelling to the right vaginal wall; and abrasions to her right and left labia.
27The complainant was tested for various sexually transmitted diseases, including HIV. She was given the “morning after pill”, antibiotics, and prophylactic medication for both Hepatitis B and HIV. The HIV post-exposure prophylactic cocktail included three different medications, which had to be taken in large quantities for at least a month. The cocktails caused the complainant severe diarrhoea, headaches, nausea, and vomiting.
28The complainant also suffered psychological harm from the assault and the fear that she might be HIV‑positive.
29The complainant missed school and work in December 2000. She did poorly in her exams, failing one. Consequently, she lost her $8000 university scholarship and felt that she could no longer attend school in Ottawa. She eventually moved to another city to attend university.
30At trial, both sides called expert witnesses to give evidence as to the nature of the complainant’s injuries. The Crown called Dr. Jacqueline Parker, an emergency room physician and a consulting physician for the Sexual Assault Treatment Centre at Ottawa Hospital. Dr. Parker has been a medical consultant to the Sexual Assault Treatment Centre in Ottawa since 1994, is the most senior and experienced physician associated with that Centre and has examined more sexual assault victims than any other physician with the Centre. Dr. Parker testified to the significant nature and number of the complainant’s injuries. She was of the view that the complainant’s injuries were consistent with non‑consensual sexual intercourse.
31The appellant called Dr. Guy Charles D’Anjou, the head of the general division of the department of obstetrics and gynaecology at the Ottawa Hospital. Dr. D’Anjou testified that there was no science that dealt with whether injuries were a product of consensual sex. With respect to the injuries sustained by the complaint, he testified that they were “very benign” and consistent with consensual intercourse. Dr. D’Anjou had virtually no experience with sexual assault victims.
ISSUES
32The appellant raises seven grounds of appeal. He submits:
the expert evidence of Dr. Parker should have been ruled inadmissible;
the trial judge erred in leaving transcripts of evidence with the jury;
the trial judge erred in failing to charge the jury on the issue of consent in respect of the offence of aggravated assault or sexual assault causing bodily harm;
the trial judge erred in failing to adequately instruct the jury on credibility;
the trial judge erred in failing to give an adequate instruction on the mens rea necessary for the offence of sexual assault causing bodily harm;
the trial judge erred in her instruction on the matter of bodily harm; and
the verdict was unreasonable.
33Of the seven grounds of appeal raised with respect to conviction, the court called on the Crown to respond on only issues 2 and 3.
1) The Admissibility of Dr. Parker’s Evidence
34The appellant appropriately takes no issue with Dr. Parker’s expertise and qualifications. He submits, however, that Dr. Parker’s evidence should have been ruled inadmissible because: the issue of consent, upon which Dr. Parker opined, was for the jury to decide; Dr. Parker was not qualified to testify about the effects of different stress factors on the structures of the genitalia; the matter was novel, in that there was a lack of studies comparing injuries to females having first-time consensual intercourse with those of females having first‑time non-consensual intercourse; and, the jury could have drawn its own inferences as to consent from the evidence without the necessity of Dr. Parker’s inference on the matter.
35Alternatively, the appellant submits that if Dr. Parker’s evidence was admissible, the trial judge erred in failing to properly instruct the jury as to how to resolve the conflicts of opinions between the two medical experts and how to use such evidence.
36In my view, R. v. Liu (2004), 2004 34061 (ON CA), 190 C.C.C. (3d) 233 (Ont. C.A.) is a complete answer to this ground of appeal. In Liu, Dr. Parker gave evidence at trial that injuries to the murdered wife’s genitals were not consistent with consensual sex, as the accused husband had contended. This court recognised Dr. Parker as a qualified expert in the area of sexual assault-related injuries. It also confirmed that the matter of injuries to the vaginal area is an appropriate area for expert evidence. At para. 19, the court stated:
Dr. Parker’s evidence was not “novel” as the appellant contends. It was based on her extensive practical experience supplemented by the admittedly limited academic literature. The area that the expert testified in has been considered in other cases. See R. v. Steinbach (1998), 1998 15018 (BC CA), 129 C.C.C. (3d) 208 (B.C. C.A.) and R. v. Colas (2001), 2001 3538 (ON CA), 161 C.C.C. (3d) 335 (Ont. C.A.). In the latter case, this court held Dr. Parker was a qualified expert in the area of sexual assault-related injuries. Dr. Parker was qualified to give the evidence she gave and the opinion she expressed did not go beyond her expertise. The members of the jury could not be expected to have expertise concerning injuries to the vagina. Dr. Parker’s evidence was therefore necessary and would rebut the anticipated evidence of the appellant that he had consensual intercourse with the deceased and was not angry with her that evening.
37Dr. Parker did not opine on consent. She gave opinion evidence on the likelihood of whether the complainant’s injuries were consistent with non-consensual sexual intercourse. It is clear from this court’s decision in Liu that such evidence is admissible.
38I reject the suggestion that Dr. Parker was not qualified to testify about the effects of different stress factors on the structures of genitalia. It is unnecessary to recite Dr. Parker’s impressive qualifications, many of which are set out in Liu. It is sufficient for the purposes of this appeal to note again that she has been a medical consultant to the Sexual Assault Treatment Centre in Ottawa since 1994, is the most senior and experienced physician associated with that Centre and has examined more sexual assault victims than any other physician with the Centre.
39Nor do I accept that her evidence was “novel”, as the appellant contends. As was stated in para. 19 of Liu, quoted above, Dr. Parker gave evidence about sexual assault-related injuries. Her opinion did not go beyond her expertise. As to the absence of studies on vaginal injuries after first‑time intercourse, while such a consideration may be relevant for the jury when assessing the weight of the experts’ opinions, it does not detract from the admissibility of those opinions. The jury was certainly aware of the lack of such studies as that matter was referred to by both Drs. Parker and D’Anjou, in the closing submissions of defence counsel and by the trial judge when reviewing the expert evidence for the jury.
40In any event, Dr. Parker’s evidence did not usurp the jury’s function in deciding the issue of consent. The clearest evidence of that is the fact that there were competing expert opinions on the matter. Moreover, the trial judge made it clear, in the charge, that there were a number of different types of evidence available to determine the issue of consent, of which the expert evidence was but one. At pp. 1397-98 of the transcript she said:
Now, you must not decide this issue simply by feeling that you must choose one opinion or one doctor over the other. There is, in this case, other evidence on which you may rely. It is up to you to choose.
41Finally, the trial judge’s charge provided sufficient assistance to the jury as to how to deal with the conflicting expert evidence. At pp. 1397 to 1398, she said:
The doctors each opined as to whether the injuries were consistent with consensual sex or whether they were consistent with nonconsensual sex, and each one took one view. Doctor Parker, of course, said that they were consistent with nonconsensual intercourse, and Doctor D’Anjou said that they were consistent with consensual intercourse arising from first-time sexual experience.
The issue about which these experts differ is one of the essential elements. It is something that Crown counsel must prove beyond a reasonable doubt before you may find Seth Quashie guilty, and the Crown must prove that there was no consent.
Now, you must not decide this issue simply be feeling that you must choose one opinion or one doctor over the other. There is, in this case, other evidence on which you may rely. It is up to you to choose.
The trial judge then summarized the evidence of Dr. D’Anjou and Dr. Parker and, at pp. 1400 to 1401, said:
So, all of this evidence you are to consider in arriving at the answer to the question: Did [the complainant] consent to sexual intercourse? If you have a reasonable doubt whether she consented to the sexual intercourse, you must find Seth Quashie not guilty. Then your deliberations would be over. If you are satisfied, beyond a reasonable doubt, that [the complainant] did not consent to sexual intercourse, then the final verdict will be guilty of sexual assault.
42Accordingly, I see no error in the admission of Dr. Parker’s evidence.
2) Leaving The Transcript With The Jury
43In response to the jury’s request and with the consent of counsel, the jury was provided with full transcripts of the evidence of the complainant and the appellant; only those portions of the transcript that related to matters taking place in the absence of the jury were excluded. The trial judge cautioned the jury twice about the need to consider all of the evidence of both the complainant and the accused and not to focus on any one particular part of the transcript. She also instructed the jurors that if they read the evidence‑in‑chief of the complainant or the appellant, they were to find all the questions in cross‑examination that related to the evidence‑in‑chief and read it too.
44The appellant contends that leaving the transcripts with the jury was an error and that consent of counsel could not cure such an error. Based on R. v. Lalande (1999), 1999 2388 (ON CA), 138 C.C.C. (3d) 441 (Ont. C.A.), the appellant argues that the only acceptable means of responding to the jury’s request for transcripts was to replay tape-recorded testimony for the jury, in open court, with the accused present and a proper record of what took place during the playback being made. Otherwise, the appellant argues, one cannot know what portions of the transcript were referred to by the jury in its deliberations.
45I do not accept that Lalande stands for the proposition argued for by the appellant. In Lalande, the jury asked for the complainant’s testimony from a particular day. The trial judge was unable to give the jury a transcript. He met with counsel in his chambers to discuss the jury’s request. The judge and counsel agreed that the response would be to indicate that if he had a transcript, he would give it to them. As he did not, however, he could only offer to have the testimony re‑played for the jury. The trial judge was not present when the tape-recorded testimony was played back to the jury. What portion of the testimony the jury heard is unknown. It is within that context that this court stated that responses to jury requests must occur in open court, in the presence of the trial judge, the accused and counsel. The facts of this case are very different. Here the transcripts were available and it is known what the jurors received.
46In my view, the courts have already implicitly decided that it is acceptable to leave transcripts with the jury. In R. v. Keegstra, 1996 221 (SCC), [1996] 1 S.C.R. 458, the Supreme Court of Canada agreed with the dissenting reasons of Foisey J.A. of the Alberta Court of Appeal [(1994), 1994 ABCA 293, 92 C.C.C. (3d) 505] in which he held that inviting jurors to focus on a particular problem and return for assistance was a “reasonable alternative” to providing the jury with the transcript. The obvious implication is that providing the jury with the transcript would have been preferable. In R. v. Ostrowski, 1990 116 (SCC), [1990] 2 S.C.R. 82, the jury had asked for the transcript of evidence of seven witnesses. The Court said, at para. 8, that “the trial judge was careful not to close the door to this request”. Again, the implication is that the trial judge ought to have given the jury the transcripts had that been possible.
47In both R. v. Kiyoshk (1999), 1999 2782 (ON CA), 133 C.C.C. (3d) 478 at para. 6 and R. v. G.B., [2004] O.J. No. 1364, this court also implicitly acknowledges not only the acceptability but also the desirability of providing the jury with a transcript when one is asked for.
48In R. v. Thomas (1987), 1987 2528 (BC CA), 20 B.C.L.R. (2d) 241, the British Columbia Court of Appeal held that it was an error on the part of the trial judge to fail to provide the jury with an available, requested transcript. The court said that there was no general answer to the question of whether a judge might or should direct that a transcript be given to a jury that requested it. However, it noted that a trial judge “should give the jury such reasonable assistance as they require and request, subject always to the condition that giving the jury the assistance that they have requested will not jeopardize a fair trial”.
49The concern that the court or parties will not know what parts, if any, of the transcript were relied on by the jury is misplaced. The jury has with it a number of items during its deliberations. Because jury deliberations are confidential, it is not known what use is made of those items. For example, we do not know what parts of an exhibit, if any, a jury relied upon but that does not make it improper for the jury to have the exhibits during its deliberations.
50Accordingly, I would reject this ground of appeal.
3) The Defence of Consent in respect of Sexual Assault Causing Bodily Harm
51The trial judge charged the jury that it need not consider the issue of consent with respect to the offence of aggravated sexual assault or sexual assault causing bodily harm, saying:
[B]ecause no one can consent to being wounded, maimed, disfigured or to have their life endangered, and those are the words that describe aggravated assault . . . at this step of your analysis your only focus will be whether the Crown has proven that there were injuries here that were of the degree required for this charge of aggravated assault.
52The appellant argues that the trial judge erred in removing the defence of consent, in respect of aggravated sexual assault and sexual assault causing bodily harm, from the jury.[1] Counsel for the appellant submits that there was no suggestion that the appellant deliberately inflicted injury or pain on the complainant and, as sexual intercourse is a generally approved of social purpose and whatever injuries the complainant suffered were incidental to sexual intercourse, consent was an available defence.
53In Regina v. Welch (1995), 1995 282 (ON CA), 101 C.C.C. (3d) 216, this court held that the public policy considerations referred to in Regina v. Jobidon (1991) 1991 77 (SCC), 66 C.C.C. (3d) 454 (S.C.C.) should be extended to vitiate the defence of consent to a charge of sexual assault causing bodily harm in circumstances involving sado-masochism and the deliberate infliction of pain. Justice Griffiths, writing for the court, concluded that the trial judge was correct in removing the defence of consent from the jury in respect of the charge of sexual assault causing bodily harm. At p. 238, he wrote:
... the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined by s.267 (2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm. Specifically, the majority in Jobidon recognized that consent may be a defence to certain activities such as rough sporting activities, medical treatment, social interventions, and “daredevil activities” performed by stuntmen, “in the creation of a socially liable cultural product”. Acts of sexual violence, however, were conspicuously not included among these exceptions.
While the circumstances of this case are not as distasteful as the facts in the House of Lords decision of Brown, they are nonetheless disturbing. The sadistic sexual activity here involved bondage (the tying of the victim’s hands and feet) and the intentional infliction of injury to the body and rectum of the complainant. The consent of the complainant, assuming it was given, cannot detract from the inherently degrading and dehumanizing nature of the conduct. Although the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour [emphasis added].
54Later decisions of this court have confirmed that consent is not a defence to a charge of sexual assault causing bodily harm in circumstances where the accused has deliberately inflicted pain or injury upon a person that gave rise to bodily harm. In Regina v. Amos, 1998 2814 (ON CA), [1998] O.J. No. 3047, which involved a charge of sexual assault causing bodily harm arising from injuries caused by anal intercourse, this court held that the trial judge erred in failing to charge the jury that lack of consent was an essential element of the offence because there was “no suggestion in the evidence that the appellant deliberately inflicted injury or pain to the complainant”.
55In Regina v. Robinson (2001), 2001 24059 (ON CA), 153 C.C.C. (3d) 398, this court considered a charge of assault causing bodily harm based on the complainant’s evidence that the appellant, in the course of much graver conduct, vigorously rubbed his goatee against her chin so that the skin was rubbed off leaving an oozing sore. The court concluded, on the basis of Welch, that the trial judge was correct in instructing the jury that consent could not be a defence to certain forms of bodily harm, but stated that “it would have been preferable had the trial judge made it clear that consent was no defence only if the appellant deliberately inflicted pain upon the complainant causing bodily harm as he had defined it.”[2]
56In the recent case of R. v. Paice, 2005 SCC 22, 2005 S.C.C. 22, the Supreme Court of Canada re-affirmed Jobidon. Justice Charron, writing for the court, says this about consent at para. 18:
Indeed, if the test were otherwise and a conviction possible if bodily harm were either intended or caused, the result would be to criminalize numerous activities that were never intended by Parliament to come within the ambit of the assault provisions and would go beyond the policy considerations identified in Jobidon. For example, if causation alone sufficed, a person who agreed to engage in a playful wrestling match with another could end up being criminally responsible if, even by accident, he caused serious bodily harm to the other during the course of play. This Court in Jobidon was very mindful not to overextend the application of the principle to like situations. Conversely, the intention to cause serious bodily harm alone cannot serve to negate the other person’s consent to the application of force if, in fact, no bodily harm is caused. The activity, a consensual application of force that causes no serious bodily harm, would fall within the scope of the consent and not in any way fall within the Code definition of assault. Yet, it would be criminalized by judicial fiat. In my view, this would constitute an unwarranted extension of the principle in Jobidon.
Two errors emerge from the trial judge’s analysis on self-defence. First, his conclusion that Mr. Bauck’s pushing of Mr. Paice was an unlawful assault because it was "without the consent of the accused" was based on his legal conclusion that neither party could rely on the consent of the other because they each had entered the fight with the intention to cause serious bodily harm to the other. This conclusion stems from the trial judge's misinterpretation of the principle in Jobidon. Jobidon requires serious harm both intended and caused for consent to be vitiated. Whether or not Mr. Bauck intended to cause serious bodily harm to Mr. Paice, he did not in fact do so. Had the fight been interrupted after the initial push, Mr. Bauck would have been entitled to rely on Mr. Paice’s consent, assuming he did in fact consent, in answer to a charge of assault. Likewise, had Mr. Paice’s reaction to the push not resulted in any serious bodily harm, he would not have been guilty of assault. As technical as it may appear, s. 34(1), by its terms, requires this step-by-step analysis of what transpired in the parking lot.
57Based on the authorities, in my view, it was an error for the trial judge to fail to instruct the jury that in order for bodily harm to vitiate consent, they had to find both that the appellant had intended to inflict bodily harm on the complainant and that the appellant had caused her bodily harm.[3]
58In this case, the trial judge should have charged the jury on the included offence of sexual assault causing bodily harm in the following terms. First, the jury had to be satisfied beyond a reasonable doubt that the appellant assaulted the complainant. Second, the jury had to be satisfied that the assault took place in circumstances of a sexual nature such as to violate the complainant’s sexual integrity. Third, the jury had to be satisfied that the sexual assault caused bodily harm. Fourth, the jury had to be satisfied that the appellant intended to inflict bodily harm upon the complainant. If the jury found that the appellant had intended to inflict bodily harm upon the complainant and that the complainant suffered bodily harm, the defence of consent was irrelevant. However, if the jury was not satisfied beyond a reasonable doubt that the appellant intended to, and did, cause the complainant bodily harm, then it was necessary for the jury to decide whether they were satisfied beyond a reasonable doubt that the complainant had not consented.
59That said, although it was an error in law for the trial judge to fail to charge the jury in this fashion, I am satisfied that the Crown has met the burden of demonstrating that no substantial wrong or miscarriage of justice has occurred. The jury clearly believed the complainant and found that she had not consented to the first incident. The jury also had to have concluded that the complainant was assaulted and suffered bodily harm in the second incident. In my view, the complainant’s physical circumstances, and the manner in which the appellant sexually assaulted her, clearly demonstrate that the appellant also deliberately caused the complainant bodily harm.
60In the first sexual assault, only two days prior, the appellant had been unable to fully penetrate the complainant. On the appellant’s own evidence, he could not recall any act or words of the complainant that signified consent. He could recall nothing of her involvement other than her expressions of pain. Also on his own evidence, the complainant’s pain was so great on the first occasion that she dug her nails into his back (which the appellant claimed he had told her to do if the pain was too great) to the point that he desisted. On the appellant’s own evidence, the first occasion satisfied him that the complainant had been a virgin. In spite of this, only two days later, the appellant did not stop when he again encountered difficulties penetrating the complainant. He testified that he felt no constraints because the complainant, previously a virgin, had now engaged in sexual intercourse. He remembers her pain and, instead of stopping, on his own evidence, he pushed her knees up to her chest, using full force so that his penis would fully enter her vagina and “put her” in different positions, including “doggy style”, in order to facilitate full penetration. Moreover, when the complainant dug her nails into his back, he did not stop but proceeded until he had managed to fully penetrate her and ejaculate.
61Accordingly, I would not give effect to this ground of appeal.
4) The Trial Judge’s Charge On Credibility
62The appellant claims that in a case such as this, where there are competing versions of the evidence, the trial judge was compelled to give “special directions and address the fundamental issue of credibility”.
63I see no merit in this argument. Defence counsel made no objection to the charge on credibility. Although I am unsure of what is meant by “special directions”, it is clear that the trial judge gave proper and thorough instructions to the jury on how to approach the assessment of credibility, including the application of the principle of reasonable doubt to issues of credibility.
5) The Instruction on Mens Rea
64Trial counsel provided the jury with a decision tree. There was no indication of the requirement to prove the appellant’s mens rea in respect of the offence of sexual assault causing bodily harm in the decision tree.
65The trial judge did address the required mens rea in her charge. She also told the jury that the decision tree was “much shortened and condensed” and that each step did not represent a full summary of each stage of their deliberations. The appellant does not take issue with the content of the trial judge’s instruction on mens rea but with the fact the trial judge failed to include a specific instruction on the issue in respect of the decision tree. The appellant submits that the omission of the requirement from the decision tree coupled with the absence of specific comment by the trial judge on that omission rendered mens rea “a non-essential element in the eyes of the jurors”.
66Defence counsel raised this issue after the jury charge. In my view, it was fully resolved by the recharge in which the trial judge gave the jury excerpts of her charge dealing with various definitions and stated that the definitions had “an important paragraph about the mental element” required for those offences.
67Accordingly, I would reject this ground of appeal.
6) The Instruction on Bodily Harm[4]
68The appellant argues that the trial judge erred in leaving the issue of bodily harm with the jury when the medical evidence could not clearly establish which injuries occurred on which occasion. As well, the appellant submits that the trial judge failed to properly instruct the jury on the necessity of finding bodily harm on the court of sexual assault causing bodily harm independent of the evidence on the count of sexual assault; failed to explain the meaning of the words “trifling” and “transient” to the jury; and, because the trial judge referred to the medication that the complainant took to prevent contracting HIV in the context of instructing the jury on the issue of bodily harm, in leaving it open to the jury to find that bodily harm occurred as a result of the medication taken.
69As the complainant was not seen at the Sexual Assault Centre until after the second sexual assault, there was no specific medical evidence as to which injuries were caused by which assault. However, it was for the jury to determine which injuries, if any, were caused by which assault. There was evidence from which the jury could conclude that the injuries were attributable to the second assault. This evidence included the fact that the appellant had not fully penetrated the complainant on the first instance but had on the second, the force and positions used by the appellant on the second occasion to ensure full penetration, and the fact that the complainant was still suffering pain from the injuries when observed by Nurse Wood at the Sexual Assault Centre. The jury did not have to attribute each specific injury to one or the other of the two incidents, so long as the jury was satisfied that the appellant had caused injuries sufficient to constitute bodily harm on the second occasion. There is no basis to conclude that the jury did otherwise.
70In my view, the trial judge’s charge and re‑charge made it clear that the jury had to treat the two counts separately and that, although the medical evidence of injuries was the same for each count, the jurors had to decide whether the injuries amounted to sexual assault causing bodily harm and on which count. The trial judge’s instruction on this matter begins at p. 1402 of the transcript:
So, we are now in count number two, and I have to tell you that it is very important, where there are two counts, to consider each in isolation. The evidence is different. The events took place on a different date, a different place, so your analysis on each count must relate only to the evidence for that particular event. The process you use, the steps you take, et cetera, can be the same, but it would be wrong in law to use evidence from one count to decide the other count. Nor are you permitted in law to look at all of the evidence in determining guilt on one count. So, you do each one as if we had a trial on count number one, and then the same thing had we had a trial on count number two, and that is how you make your decision.
71While this direction sought, quite correctly, to ensure that the jury would not use their decision on one count to buttress the other count, it did not address the fact that a considerable amount of evidence was applicable to both counts. The jury appears to have been confused on this issue and posed the following question:
Must we reach a verdict on the first count independently of any consideration of the second count?
72The trial judge discussed this question with counsel. Both counsel agreed that the jury was free to consider all of the evidence before them regarding each count. The trial judge then re-charged the jury as follows:
And the answer to that is it depends on whether you really are talking about the verdict or whether you’re talking about the evidence that you can consider.
If you are talking about the verdict itself, then you go through the analysis that I talked about and you arrive at your verdict. Whatever that verdict is, for example on count number one has no impact on what you decide for count number two in terms of the verdict. For example, they don’t have to be the same, you can decide whatever you think is correct for each verdict.
If, however, your question was really talking about what evidence you could look at - and is that a bit more what you are looking at - then I would like to remind you that you are entitled to base your decisions on all of the evidence you have heard in court and apply it to the counts, to each count, as you go along.
When there are two counts, as in a case like this, it would be wrong for you to carry over. In this case, we have two different dates of events. It would be wrong for you to carry over that because something was said or done or not said or not done on this date, that it is the same thing on the other date. You can consider all of the evidence to decide what it is on that date.
The evidence in this case is overlapping and, for example, issues of credibility, consent, injuries obviously overlap. So you have to consider all of the evidence that you consider is appropriate.
73Leaving aside the question of whether the words “transient” and “trifling” are sufficiently obscure as to require explanation, in my view, the trial judge did provide the jury with an adequate explanation of the terms. Bodily harm is defined in section 2 of the Criminal Code as follows:
any hurt or injury to a person that interfere with the health or comfort of the person and that is more than merely transient or trifling in nature
74The trial judge charged the jury as follows:
“Bodily harm” is defined as any hurt or injury that interferes with [the complainant’s] health or comfort and that is more than something that is just brief or fleeting or minor in nature.
75In my view, the HIV treatment was not left with the jury as a route for a finding of bodily harm. It was not the route suggested by the Crown, who made only passing reference to the treatment and then only in the context of the complainant’s credibility. While the trial judge made reference to the prophylactic HIV treatment during her review of the evidence applicable to a finding of aggravated sexual assault, she drew a distinction between the “aftermath of the injuries”, including the treatment, and the injuries themselves. She made it clear that the jury’s focus was to be on the evidence of the actual injuries. In this regard the trial judge said:
Now, you heard the aftermath of the injuries as described, that she had pain when she walked and that she had discomfort, nausea and diarrhea from the anti-HIV drugs that she took for a period of one month. But, more importantly, in deciding whether the Crown has proven this element beyond a reasonable doubt, you will consider the evidence of the injuries and decide whether they meet the significant threshold of aggravated sexual assault [emphasis added].
The trial judge then reviewed the evidence of Nurse Wood and the two doctors as to the complainant’s actual injuries, a review that took approximately seven pages.
76Accordingly, I leave to another case, the question of whether the prophylactic treatment for HIV in circumstances where sexual intercourse has occurred and the condom broke, followed by the offender telling the victim that he was HIV positive, could constitute bodily harm.
7) The Reasonableness of the Verdict
77The appellant argues that the verdict is unreasonable, given the contradictions in the complainant’s evidence, the evidence of the complainant’s friend and older brother, which corroborated that of the appellant on significant issues; the contradictory nature of the medical evidence; and the complainant’s behaviour after the assaults.
78The respondent argues that the appellant’s contention is no more than an invitation to this court to retry the case. I agree.
79It is well settled that the test to be applied in determining if a guilty verdict should be set aside as being unreasonable is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. See R. v. Biniaris, (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.).
80In my view, it cannot be said that the jury’s verdicts fail that test. The jury was entitled to accept the complainant’s testimony. The defence explored those aspects of the complainant’s version of events that appeared inconsistent, such as why the complainant did not scream more loudly in her residence during the first assault and why she would go to the appellant’s apartment after the first assault. The complainant offered explanations for her actions that were consistent with her being a naïve young women from a different culture who viewed these experiences with shame. Moreover, her evidence was supported by the evidence of Dr. Parker, who was of the view that the nature and extent of the complainant’s injuries were consistent with non-consensual sexual intercourse. Indeed, counsel for the appellant conceded at the oral hearing of the appeal that if Dr. Parker’s evidence was properly admissible, this ground of appeal lost much of its force.
THE SENTENCE APPEAL
81The appellant argues that the sentence was manifestly unfit, particularly because the appellant was a first-time offender. The appellant submits that the sentencing judge erred in accepting evidence as proven beyond a reasonable doubt for purposes of sentencing without explicitly referring to the reasons in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and that she failed to properly apply the principles of totality and proportionality.
82The sentencing judge considered the principle articulated by this court in R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289, that a first sentence of imprisonment should be as short as possible. However, after considering all of the circumstances surrounding the offences, she was satisfied that a significant period of incarceration was appropriate, even though the appellant was a first-time offender.
83The sentencing judge considered the physical and psychological harm that the complainant had suffered. The physical injuries included five locations of genital tears, abrasions and serious bruising, including a most unusual bruising of the cervix. The complainant suffered from diarrhoea, headaches, nausea and vomiting for a month after the assaults because of the medication she took to prevent contracting HIV. The complainant could not say which was more terrifying for her – the sexual assaults or the fear that she would die of aids. The effects of the trauma and of the anti-HIV medication resulted in the complainant being absent from work and school in December. She missed her exams and was unable to study for makeup exams in the following term as she was carrying a full academic load. She did poorly and failed one exam. She lost her scholarship and felt unable to continue at school in Ottawa. She moved, her education was interrupted and she lost her financial assistance. She continued to worry that she might develop HIV, withdrew from friends and family and attempted suicide. She continues to suffer from depression, nightmares and insomnia.
84The sentencing judge addressed the cultural implications for the complainant. As Nigerian society would look down on a family whose daughter engaged in premarital sex, the complainant was ashamed to speak with her father and lost her former close relationship with her brother.
85At the sentencing hearing, the defence called evidence from fourteen witnesses (family, friends and employers) to testify to the appellant’s good and gentle character. They characterized him as non-violent, non-aggressive, honest, reliable, warm and respectful of his mother and women. In response, the Crown called evidence from eleven witnesses, most of whom were teachers or vice-principals at the appellant’s former high school. They testified about several incidents in which the appellant had behaved aggressively and been verbally abusive, and two instances in which the appellant had threatened other students. The Crown also called evidence from one of the appellant’s former girlfriends, with whom he had a child. She described the appellant as frequently verbally abusive. On one occasion the appellant attempted o have sex with her over her objections, pulling her pants down and only stopping after considerable protest. The appellant also told her that he had AIDS, after which she had gone for testing.
86One of the defence witnesses was Dr. Bradford, a well-known forensic psychiatrist. His mandate from the defence was to perform a sexual-behaviours evaluation. Based on new information, Dr. Bradford expressed concern about the appellant’s consistent dishonesty and degree of anger and hostility.
87The sentencing judge found that the Crown had proven that the appellant had been dishonest with Dr. Bradford and others. She found that the risk of the appellant re-offending was not insignificant. In my view, there is no obligation upon a sentencing judge to advert to the requirements of W.(D.) when finding facts on sentencing. The evidence amply supported the aggravating factors relied upon by the sentencing judge.
88The sentencing judge gave thorough, thoughtful reasons that were well founded in law and grounded in the evidence. Both offences were serious and resulted in serious consequences to the complainant. The sentencing judge concluded that general and specific deterrence required a sentence of incarceration. She also properly considered the principles of totality and proportionality.
89While the global sentence may be at the high end of the range, it is not outside the range. Accordingly, I see no basis upon which to interfere with the sentence imposed.
DISPOSITION
90Accordingly, I would dismiss the conviction appeals, grant leave to appeal against sentence and dismiss the sentence appeal.
RELEASED: June 29, 2005 (“KMW”)
“E. E. Gillese J.A.”
“I agree K. M. Weiler J.A.”
“I agree S. T. Goudge J.A.”
1The trial judge instructed the jury that, included in the charges of aggravated sexual assault, were the two lesser and included offences of sexual assault and sexual assault causing bodily harm. She instructed the jury that consent had to be considered in relation to sexual assault. As the jury convicted the appellant of sexual assault on count one, the first conviction cannot be assailed on this ground.
[2]The court allowed the appeal and ordered a new trial on all of the counts in issue on the appeal on the basis of an improper cross-examination of the accused by the Crown.
3While from time to time Charron J. refers to “serious” bodily harm, bodily harm is serious by definition, thus the word “serious” is not included as part of the required instruction.
4It is clear that the jury was entitled to consider psychological hurt or injury, as well as physical injury, when determining bodily harm. Psychological harm is not discussed as it was not raised on appeal.
