COURT OF APPEAL FOR ONTARIO

DATE: 20060614

DOCKET: C40466

SIMMONS, MACFARLAND and ROULEAU JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Jennifer A. Y. Trehearne for the appellant

Respondent

• and -

TRAVIS COLE

Shelley Maria Hallett for the respondent

Appellant

Heard: March 30, 2006

On appeal from the convictions entered by Justice Gloria R. Klowak sitting with a jury of the Superior Court of Justice on May 19, 2001.

BY THE COURT:

Overview

[1] The appellant appeals from his convictions for sexual assault and unlawful confinement following a trial before Klowak J. sitting with a jury. The appellant was tried together with his co-accused, Adrian Samuels. Mr. Samuels was found not guilty by the jury of both charges.

[2] The appellant raises three issues on appeal. First, the appellant contends that the trial judge erred in law by exhorting the jury when the jury had given no indication that they were deadlocked. The second issue raised by the appellant is that the verdict of guilty in his case and that of not guilty in the case of his co-accused are inconsistent and therefore unreasonable. The third issue raised relates to the trial judge’s instructions to the jury concerning the issue of recent complaint. For the reasons that follow we would dismiss the appeal.

Analysis

a) The exhortation ought not to have been made

[3] As part of this ground, the appellant refers to portions of the exhortation and contends that, in the circumstances of this particular case, these portions of the exhortation, together with the fact that the exhortation was not warranted, created the impression of a deadline and placed undue pressure on the jury to reach a verdict.

[4] We reject this submission. While we agree that it would have been preferable had the trial judge not exhorted the jury when she did, no authorities were cited establishing that it is an error in law to exhort a jury absent an indication that the jury is deadlocked or having difficulty. In our view, the real issue in this case is whether there is any reasonable possibility that the exhortation that was given “coerced the jury or interfered with its right to deliberate in complete freedom from extraneous considerations or pressures, or caused a juror to concur with a view that he or she did not truly hold”: see R. v. G.(R.M.) (1996), 1996 176 (SCC), 110C.C.C. (3d) 26 at para. 50 (S.C.C.).

[5] On our review of the exhortation and the record in this case, we conclude that there is no such reasonable possibility. At approximately 8:50 p.m. on the evening before the exhortation was given, the trial judge invited the jury to cease deliberations and go to a hotel for the night. The jury responded by “strongly” requesting an additional two hours to continue deliberating, stating that the members were all focussed, the evidence was fresh in their minds and that they had collectively agreed upon it. Having reviewed the jury’s request with counsel, the trial judge recalled the jury and stated: “…[D]on’t feel that I am pushing you to make a decision, I am not. You should not feel rushed, it is obviously an important matter and you should not feel rushed or pushed or pressed.” The deliberations continued that evening until about 11 p.m.

[6] In exhorting the jury at 10 a.m. on the second day of deliberations,[^1] the trial judge explicitly said, “I am not speaking to you at this time in an effort to try and rush you or anything and please don’t take my comments to you in that regard.” Following the exhortation the jury continued to deliberate. They asked a further question at about 11 a.m. Although the record does not indicate when the verdict was returned, according to the recollection of trial counsel for the appellant and the co-accused, the verdict was returned either around 1 p.m. or early afternoon.

[7] In these circumstances, the suggestion that the jury may have felt pressured or rushed is not made out. The trial judge specifically instructed the jury not to feel pressured or rushed. In the face of this instruction, counsel’s submissions of what the jury might have taken from isolated passages in the exhortation are speculative. Moreover, this jury had clearly indicated that it would proceed on its own schedule; it continued to deliberate and asked a question following the exhortation.

b) Were the verdicts inconsistent

[8] In order to appreciate this ground of appeal it is necessary to review briefly the evidence at trial. The female complainant was fourteen years old at the time of the incident forming the subject matter of the charges. Both co-accused were nineteen. The appellant, the co-accused and the complainant attended the same high school. The incident began at a coffee shop near the high school and across the road from the co-accused’s house. According to the complainant, the appellant approached her and asked to speak to her outside. Once outside, the appellant indicated that he would like to introduce her to his friend and that his friend had expressed an interest in her. She agreed, and they walked together to Mr. Samuels’ house across the street.

[9] The complainant testified that they went to the back door of Mr. Samuels’ home where Mr. Samuels was waiting. Mr. Samuels pulled her into the house. Almost immediately, the appellant threw her over his shoulder and carried her upstairs to a bedroom. Mr. Samuels followed. The appellant threw the complainant onto a bed in the bedroom. With Mr. Samuels holding her hands above her head, the appellant took off her clothes and proceeded to have forced sexual intercourse with her. When the appellant finished, he held the complainant’s hands. Mr. Samuels then had forced sexual intercourse with her. Mr. Samuels was wearing a condom. Throughout this period, the complainant was resisting and attempting to fight off her attackers.

[10] Once Mr. Samuels was finished, he left the bedroom. The complainant asked the appellant why he had done this to her. In response, the appellant pushed her back onto the bed and had forced sexual intercourse with her a second time. After threatening her and telling her not to tell anyone, the appellant left the bedroom. Soon afterwards, the complainant got dressed, left Mr. Samuels’ home and went back to school.

[11] The evidence of the appellant and his co-accused differed significantly from that of the complainant. According to the appellant, once they stepped out of the coffee shop, he asked the complainant if she knew Mr. Samuels and if she considered him hot. The complainant answered “maybe”. The two of them then walked over to Mr. Samuels’ house. Once there, they let themselves in and sat on a couch in the lower level. Mr. Samuels joined them. The threesome watched television for at least one half hour and drank alcohol from a bottle that the complainant had supplied. The complainant also took an anti-depressant. Later, the appellant asked Mr. Samuels if he could use Mr. Samuels’ bedroom because he wanted to have sexual intercourse with the complainant. Mr. Samuels agreed, and the appellant and the complainant went upstairs to Mr. Samuels’ bedroom. Once in the bedroom, the two talked for about five minutes prior to having consensual sexual intercourse. When they were finished, the appellant told the complainant to wait. He wanted Mr. Samuels to have intercourse with the complainant as well.

[12] The appellant got dressed and went downstairs. Mr. Samuels went upstairs and the appellant waited downstairs. After a while, when he did not hear anything, the appellant went upstairs, opened the bedroom door and saw Mr. Samuels and the complainant sitting on the bed talking. The appellant shut the door and sat on the top step of the stairs. Mr. Samuels came out of the bedroom and asked the appellant to go downstairs, which he did. After about ten minutes the appellant heard footsteps. He went back upstairs because he wanted to have intercourse with the complainant again. As the appellant came upstairs, Mr. Samuels came out of the bedroom. The two men did not speak.

[13] The appellant went into the bedroom as the complainant was getting dressed. He and the complainant had consensual sexual intercourse a second time. They then got dressed and walked downstairs together. The complainant returned to school, and the appellant stayed in the basement for a while.

[14] Mr. Samuels evidence was substantially the same as the appellant’s. In addition to confirming material aspects of the appellant’s evidence, he stated that, upon entering the bedroom where the complainant was, he sat and talked with her for about a half hour. The complainant then said if he wanted anything to happen he should tell the appellant to go downstairs. Mr. Samuels testified that the complainant opened the bedroom door and he told the appellant to go downstairs. Once the appellant had gone downstairs, Mr. Samuels put on a condom and had consensual sexual intercourse with the complainant. When they were finished, Mr. Samuels got dressed, went downstairs and left the house. However, as he left, he observed the appellant go back upstairs.

[15] In our view, on this evidence, it was open to the jury to acquit Mr. Samuels and to convict the appellant. In this regard, in R. v. Pittiman 2006 SCC 9 at para. 10, the Supreme Court of Canada set out the test for determining whether verdicts are inconsistent and therefore unreasonable. The test is as follows: “are the verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence?”

[16] The verdict suggests that the jury had a reasonable doubt in respect of Mr. Samuels. Despite that doubt, it was open to the jury to accept the complainant’s evidence concerning the appellant’s second act of intercourse, reject the appellant’s evidence on that issue and conclude that it did not raise a reasonable doubt. On this theory of the evidence, the jury could convict the appellant in relation to his second act of intercourse with the complainant and the period of confinement associated with it. Further, this conclusion would be consistent with the evidence of Mr. Samuels that the appellant returned to the bedroom after Mr. Samuels went downstairs. The test in Pittiman is therefore met.

c) The trial judge’s instructions respecting the issue of recent complaint

[17] The trial judge’s instruction was as follows:

I want to deal briefly with complaint. There is no requirement in our law that the prosecution prove that [the complainant] complain to someone about the accused’s conduct. Complaint is not an essential ingredient of the offence before you and you are not here to try her on whether or not she complained to anybody about the accused’s conduct.

You may however, and again it is up to you, consider evidence of complaint or lack of complaint and any explanations along with it, along with all of the other evidence which you accept in assessing her credibility and in determining whether or not the prosecution has proved its case beyond a reasonable doubt. I want to tell you very clearly that complaint is not evidence of the facts complained of. In other words if you accept that she complained to the vice principal for example, it is not evidence that the incident occurred or that the details she gave, any one of them, are true.

The fact of the complaint and the particulars of it can be used only for the purposes of enabling you to judge for yourself whether her conduct was consistent with her testimony on oath given in the witness box before you and to assist you in determining whether her conduct was such as you would expect in a truthful witness under the circumstances related by her.

In other words, complaint or lack of complaint and any explanations for it can only be used by you in considering her credibility and for no other purpose.

With respect to evidence of complaint, it includes the evidence relating to the circumstances of her telling the vice principal when she returned to the school, I will look over that with you. She says she did not tell her friends about it. When they called her after and her explanation was that she did not want them to know about her business. Now it is up to you to consider the evidence with respect to complaint or lack of complaint and any explanations along with all of the other evidence in assessing her credibility and in determining whether or not the prosecution has proved the guilt of each accused beyond a reasonable doubt.

[18] At trial, defence counsel for the two accused mounted a substantial attack on the complainant’s credibility based on the timing and circumstances of her complaint

[19] Specifically, in his closing submissions, one of defence counsel cited the complainant’s failure to tell her friends about the incident when, after the event, four of these friends called her. He also raised the fact that the complainant went back to school after the incident rather than contact the police or her father. When she was brought to the vice-principal’s office for not having gone to her noon-time detention, she first told the vice-principal that she had forgotten about it before reporting the alleged assault. Defence counsel also suggested that, by telling the vice-principal that she did not want the police involved, the jury should conclude that the sexual intercourse had been consensual.

[20] The law respecting recent complaint was addressed by the court in R. v. F.(J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 (C.A.). In that case, the statements regarding the complaint were admitted as being a part of the narrative. At p. 476, Finlayson J.A., speaking for the court, dealt with the use that could be made of the statements as follows:

The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed.

[21] The appellant does not suggest that the statements respecting the complaints ought not to have been admitted. Rather, he submits that evidence of prior complaint can only be used in assessing credibility to the limited extent of dispelling allegations of recent fabrication. No such allegation was made in this case. Rather than give a clear limiting instruction, the trial judge gave the opposite of a limiting instruction, telling the jury repeatedly that they could use the complainant’s prior consistent statement in assessing her credibility.

[22] We reject the appellant’s submission that the trial judge erred in law in relation to this aspect of her instruction. As we have set out above, the defence raised issues respecting the circumstances surrounding the complaint and the lack of complaint and argued that these should be taken into account and used by the jury to find the complainant incredible. The complainant explained her conduct. Her evidence and explanation of the circumstances surrounding the complaint were matters that the jury could consider in assessing credibility. This part of the charge must, therefore, be read in context. The trial judge quite properly told the jury that they should consider the circumstances surrounding the complaint and lack of complaint as well as the explanations of the complainant in assessing her credibility. These are appropriate instructions given the position taken by the defence. As provided in the R. v. F.(J.E.) decision, the trial judge then went on to instruct the jury that the complaint and any of the details of the complaint were not evidence that the incident had in fact occurred. Although it would have been preferable had the trial judge provided the jury with explicit instructions as to how the jury could use the evidence of complaint in assessing the complainant’s credibility, we do not, in the circumstances of this case, consider that the failure to do so constitutes an error. In particular, we do not think that the jury would have been misled into using the evidence of complaint for an improper purpose. Moreover, defence counsel at trial made no objections to the trial judge’s charge.

[23] Accordingly, we would not give effect to this ground of appeal.

Conclusion

[24] For these reasons we would dismiss the appeal.

“J.M. Simmons J.A.”

“J.L. MacFarland J.A.”

“Paul S. Rouleau J.A.”

RELEASED: June 14, 2006

[^1]: On the second day of deliberations, the jury commenced deliberating at 8 a.m.