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:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Laskin, Rouleau and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Lawrence Garon
Appellant
Timothy E. Breen, for the appellant
Craig Harper, for the respondent
Heard: June 20, 2008
On appeal from judgment of Justice John dePencier Wright of the Superior Court of Justice on December 20, 2006.
I. INTRODUCTION
1On February 19, 2005, the complainant, P.L., attended a party at a hotel in celebration of the birthday of her close friend, J.H. In the early morning hours, the complainant left the party with Lawrence Garon and another man, Jeff Storrey. They ended up in her hotel room where, according to the complainant, she was sexually assaulted. The allegations include a beer bottle’s being forced into her vagina causing a tear to her cervix.
2The police were called to the scene and the complainant was taken to hospital. Both men were charged with sexual assault, sexual assault with a weapon, and sexual assault causing bodily harm. Garon pleaded not guilty and elected a trial before a judge and jury.
3The primary issue at trial was whether the sexual activity was consensual. It was the defence position that P.L. had engaged in consensual sex with the two men and then complained of sexual assault to avoid embarrassment after being discovered by J.H.
4The jury found Garon guilty on all counts. Counts one and two were stayed pursuant to the rule in Kienapple. Garon was convicted of sexual assault causing bodily harm and sentenced to a term of imprisonment of two years less a day, followed by 12 months’ probation.
5Garon appeals against his conviction on a number of grounds, all alleging that the trial judge’s final instructions to the jury were inadequate.
6In my view, the trial judge failed to properly instruct the jury. For the reasons that follow, I would allow the appeal, quash the conviction, and direct a new trial.
II. FACTS
P.L., the appellant and Storrey go to P.L.’s hotel room
7The birthday party took place at a hotel in Dryden, Ontario where P.L. and J.H. were both employed. The two young women rented a room at the hotel, room 202, so they would not have to worry about driving home after the party. Shortly before midnight, P.L., J.H. and several other partygoers left the birthday celebration to go to a bar at a nearby hotel. While they were at the bar, the appellant arrived with some friends, including Storrey. The complainant was already acquainted with the appellant through J.H.
8At about 2:00 a.m. the complainant and J.H. returned to the meeting room at their hotel where the party had been held. They were joined by several others, including the appellant and Storrey.
9The complainant testified that the appellant put his arm around her waist and invited her to join him and Storrey in a threesome. The complainant refused but the appellant persisted. She testified that the appellant put his arm on her forearm and led her from the meeting room and across the hotel lobby, while Storrey followed.
10The front desk clerk testified that he saw two men either pulling or helping P.L. through the lobby to the stairs. Each man had one of her arms and she was pulling against them. The complainant’s manner was described as being “semi-limp”. The front desk clerk testified that he thought P.L. and the two men were drunk and were just joking around.
11P.L.’s evidence was that the appellant led her to the stairwell and pulled her up the stairs by her arm. She pulled back a couple of times but did not feel that she was in any danger. At the landing between the first two floors the appellant grabbed her across the chest from behind and pulled her up the stairs. She said she began to offer more resistance because she was getting more worried. At some point, she protested, saying, “Let me go. I’m not going with you.” In cross-examination, the complainant explained that she did not scream or yell because she did not want to cause a scene if it was unnecessary. It was early in the morning, and she did not want to wake up the guests and risk losing her job.
12P.L. testified that upon reaching the second floor the appellant pulled her down the hall to room 202. The appellant told her to give him the keys. When she said she did not have the keys, the appellant insisted she did and took them from her back pocket.
13The complainant testified that she strongly resisted going into the room with the two men. She was not yelling, but was saying, “Let me go.”
The events inside the hotel room
14P.L. testified that, once inside the hotel room, the appellant grabbed her forearms, dragged her into the bedroom and pushed her onto the bed. Storrey then took off his shoes, pants and underwear while the appellant slid the complainant’s arms underneath her body and began pushing down on her chest. Storrey climbed onto the bed, crawled up towards her head, grabbed her hair and put his penis in her mouth.
15The complainant further testified that she heard the appellant’s pants fall to the floor. He lifted her shirt and began sucking on her breasts. He pulled her pants down around her ankles and ripped her underwear. At that point, she felt herself being digitally penetrated. A little while after that, she felt something cold and painful in her vagina.
16P.L.’s evidence was that when Storrey was in her mouth, she convinced herself to bite down on him. However, she was scared of what might happen to her if she hurt him, so she just closed her teeth. She said “I guess my teeth just scrapped along him.”
The discovery
17The telephone rang and P.L. told the men that it was J.H. and that she was coming to the room. Storrey put his clothes on and left. The complainant testified that at this point the appellant was still pushing the beer bottle inside her vagina and that one of his hands remained on her chest to hold her down. She may have said a second time that J.H. was coming and the appellant then got up and bolted the door. The complainant pulled up her pants, went into the bathroom and locked the door. When she was getting up from the bed, she noticed that it was wet beneath her. In the bathroom she discovered blood all over her legs.
18There was a knock at the door. The complainant could hear J.H. demanding that she open the door. The appellant told her not to open it. P.L. finally opened the door and J.H., seeing the appellant in the room, accosted him. The appellant left and J.H. went after him.
19The complainant phoned the front desk looking for J.H. She testified that she wanted to talk to J.H. because she was concerned about what J.H. would think. She was hesitant to complain because the appellant was well-regarded by J.H.’s family and had provided J.H.’s father with financial assistance. Unable to reach J.H., the complainant found another girlfriend, K.S.P., who, together with her boyfriend, accompanied the complainant back to her room. There, they saw blood and a beer bottle on the mattress. Eventually, J.H. returned to the room and K.S.P. called the police.
The arrival of the police
20Around 4 a.m., Officer Hildebrand arrived at the scene with another male officer. They were escorted to room 202 where they found the complainant on the floor of her room, crying. Officer Hildebrand testified that P.L. outlined what had happened that night. He advised the complainant that she would need to speak to a female officer. A female officer arrived sometime later and P.L. gave her more details. Arrangements were made to take the complainant to hospital.
The injuries
21The nurse who examined the complainant testified that upon arrival she looked like she had been through a traumatic experience. She described P.L. as quiet, pale and cold to the touch, and said that she looked “shockey”. The nurse did not observe any external injuries. She did not remember any blood on the complainant’s legs. The complainant appeared to be sober.
22Dr. Yvon Gagnon performed a pelvic exam. He and the nurse observed that the complainant had suffered a tear to her cervix – about one centimetre in diameter. The doctor testified that the cervix is a very mobile organ and that some degree of force would be required to cause an injury of that nature. Such an injury was not consistent with penetration by a finger or penis but was consistent with being caused by a beer bottle.
The forensic evidence
23The forensic identification officer who examined the hotel room noted no signs of disturbance to the room. The bedspread sheets and blankets remained tucked in. There were no signs of any drag marks in the carpet or other signs of a struggle.
24Blood-like staining was observed on both sides of the bed spread. The stain penetrated the blankets and sheets, measuring approximately 65 by 20 centimetres. There was a smaller stain on the mattress itself. A biologist with the Centre of Forensic Sciences testified that the stains had been diluted by a solvent such as water or beer.
25A beer bottle was seized from the bedside table and a small amount of blood-like substance was observed inside the lip of the bottle. Tests of the substance on the bottle revealed that it was female blood.
26Blood-like staining was also noted on the inner and outer surfaces of the groin area of the complainant’s jeans. Similar stains were observed on her shirt and underwear. One strap of her underwear was broken.
Defence evidence
27The appellant did not testify on his own behalf. However, the defence called three witnesses.
28Ross Reynolds gave character evidence. He grew up with the appellant and was his immediate supervisor at work. He testified that the appellant enjoyed a good reputation in the community – an honest man with integrity.
29J.H.’s father, who had known the appellant for a number of years, also testified that the appellant enjoyed a good reputation in the community. Further, he gave evidence that the appellant had never assisted him financially, contradicting the complainant’s testimony.
30J.H.’s older sister was at the birthday party. She testified that she saw the appellant, the complainant and Storrey talking, laughing and flirting with each other. She also testified that she saw P.L. drinking.
III. ISSUES
31The appellant raises four grounds of appeal, all relating to the adequacy of the trial judge’s final instructions to the jury. The appellant submits that the trial judge erred as follows:
(1) Failing to adequately review the evidence and relate it to the position of the defence;
(2) Failing to instruct the jury about the relevance of prior inconsistent statements to the issue of credibility;
(3) Failing to instruct the jury as to the limited use of evidence of recent complaint; and
(4) Failing to adequately instruct the jury on the requisite intent for party liability.
Additionally, the Crown raises the following issue:
(5) If the trial judge did err by giving inadequate instructions to the jury, should the curative proviso be applied?
IV. ANALYSIS
(1) Did the trial judge err by refusing to review the evidence as it related it to the defence position?
32During the jury charge, the trial judge summarized the positions of the parties, as follows:
The Crown’s position is that she did not consent to having a beer bottle thrust up her vagina. The Defence’s position is that, after considering all of the evidence you should have a reasonable doubt on that issue. The accused does not have to prove that [P.L.] consented to this sexual activity. It is up to Crown counsel to satisfy you beyond a reasonable doubt that [P.L.] did not consent to this conduct.
Now ordinarily I would embark on a review of all of the evidence. You’ve heard the evidence. It’s been a relatively short trial. It’s fresh in your minds. Both counsel have covered it. There’s no sense in me going through it again. I choose not to do so.
33At the conclusion of the trial judge’s instructions to the jury, defence counsel strongly objected to the charge on the basis that the jury was not adequately advised of the defence position. However, the trial judge refused to re-charge the jury noting that both counsel had fully reviewed the evidence and set out the positions of the prosecution and defence in their closing submissions.
34The appellant repeats his objection before this court, arguing that the trial judge erred by failing to review the important parts of the evidence as it related to the defence position. The Crown argues that, while brief, the trial judge’s summary was sufficient to identify what facts and issues were relevant to the jury.
35In Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at p. 499, the Supreme Court of Canada made it clear that the trial judge must fairly and adequately outline the parties’ positions. Except in rare cases where it is clearly unnecessary to do so, the trial judge must review the substantial parts of the evidence and give the jury the theory of the defence so that the jury may appreciate the value and effect of that evidence. Counsel’s closing arguments cannot relieve the trial judge of this obligation: see e.g. R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (Ont. C.A.), at p. 387.
36I do not accept that this was one of those rare cases where the trial judge was justified in refusing to outline the parties’ positions in the charge to the jury. The trial spanned two-weeks during which extensive evidence was presented relevant to the central issue of consent. The jury also faced the added complication of having to understand the legal complexities of party liability and assess the evidence relevant to that issue.
37In my view, the trial judge’s failure to outline the defence position constituted reversible error.
38The thrust of the defence position was that the complainant’s evidence was not worthy of belief. There were numerous challenges to her trustworthiness. For example, there were a number of instances where the complainant’s testimony at trial was inconsistent with what she had told police about the alleged assault. Further, although the complainant testified that she was taken to her hotel room against her will, she did not yell for help. She testified that she did not tell the appellant that she was staying in room 202. However, the complainant was unable explain how he knew that this was the room she had rented. The complainant maintained that she strongly resisted going into the room with the two men, but there was no evidence of a struggle in the room. Additionally, the complainant did not immediately complain of the alleged sexual assault to J.H. when she let her into the hotel room, even though J.H. was her best friend. She explained that she was reluctant to complain because she was concerned that a complaint about the appellant might cause problems for J.H.’s family, given that he had assisted them financially. J.H.’s father denied that the appellant had ever assisted him financially. The defence alleged that these factors, among others, called the complainant’s credibility into question.
39None of this evidence was reviewed in the trial judge’s charge.
40I appreciate that there is no prescribed template into which a jury charge must fit. Azoulay does not stand for the proposition that the trial judge must review all facts upon which the defence relies. The test is fairness - this court’s inquiry is whether the instructions fairly and accurately outlined the positions of the parties and alerted the jury to the evidence relevant to those positions.
41It was the duty of the trial judge to lay the defence theory before the jury and to direct their attention to the evidence that could cast a doubt on the truthfulness of the complainant. What the trial judge did here – merely telling the jury that the evidence was fresh in their minds and had been reviewed by both counsel – fell far short of meeting that obligation. In fact, the trial judge’s jury instructions were almost identical to the instructions that this court found insufficient in R. v. Yadollahi (1987), 1987 CanLII 6852 (ON CA), 36 C.C.C. (3d) 478.
42It is no response for the Crown to submit that the trial judge failed to review its position as well. In essence, the Crown contends that two wrongs make a right. I cannot accept that argument. The appellant was entitled to a properly instructed jury.
(2) Did the trial judge err by failing to instruct the jury about the relevance of prior inconsistent statements?
43The instruction to the jury concerning the use they could make of prior inconsistent statements is contained in the following paragraph:
In deciding whether a witness is worthy of belief, you should bring to bear your common everyday experience in such matters, simply exercise good common sense. You may believe all of the evidence given by a witness, part of that evidence, or none of it. In determining whether to believe a witness, you should consider such things as: his or her ability and opportunity to observe; his or her appearance and manner while testifying before you; his or her power of recollection; any interest, bias or prejudice he or she may have; any inconsistencies in his or her testimony and the reasonableness of his or her testimony when considered in the light of all of the evidence in the case. [Emphasis added.]
44The appellant submits that the trial judge failed to adequately instruct the jury as to the significance of prior inconsistent statements to the issue of credibility. It is argued that given the number and nature of the complainant’s prior inconsistent statements, the trial judge had to do more than merely advise, in general terms, that inconsistencies are relevant in the assessment of credibility. The Crown submits that while the instructions in this regard could have been more detailed, the jury was properly advised as to how to assess the evidence of witnesses.
45The core of the defence in this case was that it would be unsafe to convict based on P.L.’s testimony. The record contains a number of examples where her testimony at trial was inconsistent with what she had said earlier about the same subject matter. Some of the prior inconsistent statements upon which the appellant relied in oral argument are outlined as follows:
(a) The manner in which the complainant left the meeting room
The complainant testified that she was “led” from the room by the appellant. However, in her statement to police a few hours after the alleged assault, she said “[the appellant] dragged me out of the meeting room.”
(b) The manner in which the complainant proceeded through the lobby area
The complainant testified that she was “led” through the lobby area to the door which led upstairs. However, in her statement to police a few hours after the alleged assault, she said: “And then once we got out of the meeting room he had both my arms, like, one hand on each arm and he was pulling and I was like, pulling back, and trying like, dead weight, and he was pulling and pulling.”
(c) Whether the complainant bit Storrey’s penis
The complainant told the Officer Hildebrand that she bit Storrey’s penis. However, during her testimony, she said “I wouldn’t say I bit, I would say I closed my teeth.”
46In my view, the trial judge did not adequately instruct the jury with respect to the manner in which they should approach their task of assessing the complainant’s credibility, particularly in the light of his failure to outline the position of the defence and the importance of P.L.’s credibility to that position. The trial judge was obliged to explain more fully the permitted use of prior inconsistent statements – different versions of events given at different times may be important in assessing the credibility of the witness’s testimony.
47Additionally, although it was not argued, I am of the view that the trial judge erred by failing to explain to the jury the prohibited use of prior inconsistent statements – they must not use the prior inconsistent statements, not adopted as true under oath at trial, as evidence of what actually happened. The failure to give this limiting instruction is of particular concern given that the conduct alleged in the prior inconsistent statements was capable of supporting P.L.’s position that she did not consent to the sexual activity.
48While the complainant provided explanations for many of the inconsistencies put to her in cross-examination, these explanations only relate to the nature and extent of the inconsistencies. The jury still must be properly instructed as to the use they may make of any inconsistencies that they find have not be adequately explained. Uninstructed, the risk of impermissible use remains.
49In R. v. Mannion, 1986 CanLII 31 (SCC), [1986] 2 S.C.R. 272, the Supreme Court of Canada made it clear that failure to warn a jury that an inconsistent statement may be used only on the issue of credibility unless the witness has adopted the statement as true, is a reversible error.
(3) The instructions concerning the limited use of evidence of recent complaint
50Generally, prior consistent statements are inadmissible as self-serving evidence. In this case, the appellant concedes that the fact that P.L. complained to her friends, the police, and the hospital personnel about what happened in the hotel room, and the timing of those complaints, was admissible to respond to the defence counsel’s suggestion that she would have complained at an earlier opportunity if the events had transpired as she had described. However, the appellant argues that the trial judge erred by failing to instruct the jury that the evidence of recent complaint could only be used to rebut the allegation that P.L. would have complained at an earlier opportunity, and that it must not be used as proof of the offences charged.
51The Crown contends that a limiting instruction was not necessary in this case given that the Crown, in argument, did not invite the jury to rely on the complaints for the truth of their contents, and further, the defence wished to elicit some of these complaints in order to challenge the complainant’s credibility.
52While this court has held that the usual limiting instruction regarding a prior consistent statement may not be necessary where the defence itself relies upon the prior statement, where it was clear to the jury that the statement was not offered as proof of the underlying facts, or where the concern about self-corroboration is simply not present (R. v. Demetrius (2003), 2003 CanLII 16618 (ON CA), 179 C.C.C. (3d) 26, at paras. 21-22), I am of the view that an instruction was necessary in the circumstances of this case.
53While the Crown did not suggest to the jury that the statements were offered as proof of the underlying facts, no one suggested that such an inference was impermissible. Further, given that the defence was an all-out attack on the complainant’s credibility, there was a serious concern that the jury may have used the evidence as a form of self-corroboration. In the circumstances, the trial judge was obliged to advise the jury of both the permitted and prohibited use that could be made of the prior complaints.
(4) The instructions concerning the requisite intent for party liability
54In the charge to the jury the trial judge said the following:
One person may be guilty of an offence committed by another. We say that he is a party to the other’s offence. A classic example is the driver in a hold-up, the person behind the wheel of the car. The other person goes into the shop and does the holding up, but the driver is a party to the offence. Section 21 of the Criminal Code says “Everyone is a party to an offence who (a) actually commits it or (b) does or omits to do anything for the purpose of aiding any other person to commit it or (c) abets any person in committing it”. Subsection 2 says “where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them in carrying out the common purpose commits an offence each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to the offence”.
There is no doubt that the complainant was touched sexually by the insertion of the beer bottle into her vagina. She may also have been subjected to fingers in her vagina and to kissing on her breasts. There were only two persons present. The complainant says that it was Mr. Garon who put his fingers in her vagina, kissed her breast and inserted the beer bottle into her vagina. Now, either he did this or he did not do this. If he did not insert the beer bottle, then Mr. Storrey must have inserted the beer bottle, because the beer bottle was inserted. In that case, you should consider whether Mr. Garon was a party to the action of Mr. Storrey in inserting the beer bottle. That is, if you conclude that it was not Mr. Garon, but was Mr. Storrey. [Emphasis added.]
55During deliberations the jury asked two questions, including the following: “Does Mr. Garon have to commit the second and third offence or can he be convicted as a party to the offence of another?”
56In response, the trial judge stated:
The second question that you pose is, “Does Mr. Garon have to commit the second or third offence” – I presume you mean personally – “or can he be convicted as a party to the offence of another on these charges?” You didn’t say “on these charges” but I assume that’s what you mean. The answer simply is yes. You will look at these other charges, that is the sexual assault with a weapon or sexual assault causing bodily harm and if you conclude that it was Storrey that caused, that committed those offences, then Mr. Garon can only be convicted if he falls within the parameters of section 21 of the Criminal Code, which I have given you in your charge. Briefly, simply, that he’s only liable for Storrey’s offences if he did something to assist Storrey in committing those offences. So he may have assisted, let’s say, Storrey to commit the sexual assault of the bottle or whatnot and I want to warn you, we’re not talking about Storrey’s offence of oral sex. That is not before you. That has nothing to do with this case. What’s before you in this case is the fondling, the alleged fondling of the vagina, the alleged kissing of the breasts and the bottle up the vagina. So if, in fact, even if you found that Storrey committed the sexual assault and that Mr. Garon assisted him or was a party to his commission of that offence, that does not necessarily make Mr. Garon a party to sexual assault with a weapon or sexual assault causing bodily harm. You’ll have to look at those separately. Each charge is separate in this regard.
57The appellant submits that the trial judge’s failure to properly explain the mens rea for party liability and relate the evidence to the issue cannot be excused as harmless error. The Crown argues that the definition provided by the trial judge in the jury charge adequately explained that the appellant could only be found guilty as a party if he acted “for the purpose” of aiding Storrey in the commission of the sexual assault with a weapon, or sexual assault causing bodily harm.
58The jury question suggests that the jury may not have been satisfied that the appellant was the principal in relation to the charges of sexual assault with a weapon and sexual assault causing bodily harm. This glimpse into the jury’s thinking opens the door to the possibility that they were confronting the problem of the appellant’s potential liability under s. 21(1)(b) of the Code. In light of the evidence of the appellant’s consumption of alcohol and that there was some evidence underlying the jury’s question about party liability, it would have been preferable to provide the jury with further instructions regarding the mens rea for party liability.
59Having said this, it is difficult to see how the appellant could have been convicted as a party on this record. As such, I do not find the deficiency in this aspect of the jury instructions to constitute a reversible error.
(5) If the trial judge did err by giving inadequate instructions to the jury, should the curative proviso be applied?
60In considering these challenges, I note that the appellant’s trial counsel objected to the trial judge’s failure to summarize the parties’ positions for the benefit of the jury. However, no objections were advanced regarding the other grounds of appeal.
61The failure to object can inform the court’s assessment of the adequacy of the trial judge’s instruction, especially where the appellant relies on a non-direction as a ground of appeal. However, I am satisfied that the errors I have identified affected the appellant’s right to a fair trial and counsel’s failure to object to all but the first issue is no answer to this appeal.
62While the Crown’s case was formidable and the weight of the evidence pointed toward the appellant’s guilt, I am not persuaded that this is a proper case for the application of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. It is only open to this court to apply the proviso if satisfied that the jury would inevitably have found the appellant guilty had the errors not occurred.
63While the evidence strongly supports the conclusion that the appellant inserted a beer bottle into the complainant’s vagina, the nature of that act alone does not lead to the conclusion that the complainant did not consent. In order to determine whether the Crown had proven beyond a reasonable doubt the essential elements of sexual assault with a weapon, the jury had to assess the credibility of the complainant’s testimony that she did not consent to that particular sexual act. In my view, that assessment was necessary notwithstanding the nature of the conduct in issue in this case and the nature of its consequences.
64I have concluded that the trial judge did not adequately instruct the jury in a number of respects relevant to the central issue of credibility – summarizing the defence theory, instructing on the use to be made of prior inconsistent statements, and failing to provide a limiting instruction about the use the jury could make of evidence of recent complaint. On the facts of this case, a thorough instruction on matters relating to the complainant’s credibility was essential. Unfortunately, this was not done.
65I appreciate that the test of the adequacy of jury instructions is a functional one based upon an assessment of the instructions as a whole. As Watt J.A. observed in R. v. Almarales, 2008 ONCA 692, at para. 60: “Jury instructions should equip jurors to decide the case the parties have presented to them for decision.” The instructions must not only assist the jury in understanding the facts, the governing legal principles and the essential features of the evidence, but also leave the jury with a firm understanding of the parties’ positions.
66In this case, I would refuse to apply the curative provisions of s. 686(1)(b)(iii), having regard to the seriousness of the trial judge’s failure to outline the parties’ positions, combined with the nature and number of the other inadequacies in the final charge. I have considered the inadequacies of the final instructions in the light of the significance of the jury’s assessment of the complainant’s credibility to the finding of guilt. The appellant was denied his right to a jury properly instructed on all aspects of the case relating to this central issue. I am unable to say that, had these errors not occurred, the verdict would inevitably have been the same.
67Accordingly, in my view, the conviction should be quashed, and a new trial ordered on all counts.
“Gloria Epstein J.A.”
Overview
68I have had the benefit of reading my colleague’s reasons in this matter. While I agree that the trial judge’s charge is deficient in certain respects, I have concluded that, with one exception, none of these inadequacies constitutes an error of law. However, in all of the circumstances, I would apply the curative proviso rather than order a new trial.
69I do not need to review the facts of this case, as they have been fully articulated in my colleague’s well-written reasons. Suffice it to say, this was a very strong Crown case. The appellant did not testify in his own defence to provide a narrative of events different from that given by the complainant. The complainant suffered a serious laceration and bruising injury to her cervix, of a kind that the examining physician had never before seen in over 2,500 pelvic examinations, caused by the strong and rapid thrusting of a beer bottle into her vagina. The complainant was clearly traumatized after the event. At the scene, the police found the complainant crying and visibly upset. When she was taken to hospital, the nurse noted that she appeared “shockey” and very pale, was cold to the touch, and was extremely quiet.
Analysis
70I will address the five issues raised on appeal in the same order as they were addressed by my colleague. Before doing so, however, I wish to make two observations.
71First, I note that, with respect to all but one of the concerns with the trial judge’s charge to the jury addressed by my colleague, no objection was made by defence counsel to the charge at trial. As noted by Moldaver J.A., writing for this court, in R. v. Phillips (2001), 2001 CanLII 24121 (ON CA), 154 C.C.C. (3d) 345, at p. 359, the failure to object is an indication that counsel was satisfied that the jury fully appreciated their role and “it serves as a yardstick against which to measure the contrary position now advanced for the first time on appeal.”
72Second, in my view, several of the appellant’s bases for challenging the complainant’s credibility have limited significance in the circumstances of this case. For example, although the complainant’s credibility was called into question by defence counsel because there was no sign of struggle in the hotel room (other than the pool of blood on the bed) and because she did not yell for help nor did she immediately complain of being sexually assaulted, this challenge is, to a large degree, premised on the stereotypical assumption that there is a “normal” reaction by victims of sexual assault. This has long ago been discounted by Canadian courts and, in fact, juries should generally be cautioned about making such assumptions: see R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275.
1. Did the trial judge err in refusing to review the evidence and to relate it to the position of the defence?
73This issue consists of two separate, albeit inter-related, components: first, whether the trial judge failed to adequately advise the jury of the defence position; and, second, whether the trial judge should have reviewed the evidence presented at trial, including the evidence that cast doubt on the complainant’s credibility, in his charge to the jury.
a) Did the trial judge adequately advise the jury of the defence position?
74At the conclusion of his submissions at trial on behalf of the appellant, defence counsel summarized the defence position as follows:
In closing then, my respectful submission to you is, that based on the evidence you’ve heard, certainly the evidence of [P.L.] and the evidence of the identification officer, the evidence of those witnesses called by the defence, in my respectful submission, you just do not find yourself in a position of being sure what took place, so as to be able to come to a conclusion of guilt on any of these charges. I suggest to you that simply isn’t possible on the evidence that you’ve heard. I ask you to give Mr. Garon the benefit of that doubt and find him not guilty as charged.
75In its submissions, the Crown noted that the events unfolded in a hotel room that the complainant was sharing with her best friend and involved two men, one she did not know and the other she only knew vaguely through a friend. The Crown then focused on the sheer improbability that the complainant, in these circumstances, would have consented to having her underwear torn off and a beer bottle repeatedly thrust into her vagina.
76In his charge to the jury, the trial judge characterized the issue to be determined by the jury and the respective positions of the parties as follows:
The issue is whether she consented to the sexual activity that forms the basis of this charge. In particular, did she consent to having a beer bottle thrust up her vagina. The Crown’s position is that she did not consent to having a beer bottle thrust up her vagina. The Defence’s position is that, after considering all of the evidence you should have a reasonable doubt on that issue.
77After the jury retired, defence counsel objected to the charge and requested that the trial judge put the defence’s position in different terms. Specifically, defence counsel asked for its position to be put to the jury as follows:
[T]he quality of [P.L.’s] evidence with all of the inherent inconsistencies and other frailties I’ve pointed out, are such that they should have a reasonable doubt. That’s the defence position.
78It is clear from this extract from defence counsel’s closing submissions that defence counsel, through its objection to the trial judge’s charge, wanted the trial judge to put its position to the jury with a slightly different emphasis, namely, on the complainant’s inconsistent evidence. The defence’s attempt to refine its position may well have been a response to the way in which the Crown had framed its closing submissions. In my view, the way that the trial judge expressed the defence position was not unfair. It was, however, incomplete and, in light of the aforementioned request by defence counsel, the trial judge should have reframed the defence position in the manner articulated by defence counsel and, in one or two paragraphs, he ought to have related both the defence and Crown positions to the submissions they made regarding the complainant’s credibility. His failure to do so was an error.
b) In his charge to the jury, should the trial judge have undertaken a review of the evidence presented at trial, including the evidence which cast doubt on the complainant’s credibility?
79The appellant submits that the trial judge failed to adequately review the evidence heard at trial and that such evidence was not so straightforward as to relieve the trial judge of his duty both to review it and to relate it to the issues and to the defence position.
80As I have explained, the trial judge’s failure to reframe the defence position and briefly relate the defence and Crown positions to the evidence, in my view, constitutes an error. I do not, however, consider that the failure to carry out a broader review of the evidence constitutes an error. While the trial judge did not undertake a stand-alone review of the evidence, he did deal with key portions of the evidence in various parts of his charge. Importantly, defence counsel did not object to the trial judge’s review of the evidence nor to his failure to direct the jury to evidence that might cast doubt on the complainant’s truthfulness. While a somewhat more extensive review of the evidence would have been preferable, in the circumstances of this case, I do not consider that his failure to do so constitutes an error.
81The duty of the trial judge in a charge is to “decant and simplify”: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at p. 325. This was a straightforward case. Accordingly, the charge was adequate to convey to the jury what were largely uncontested facts in relation both to the various legal elements of the offence of sexual assault and to causation. Moreover, the trial judge described the nature of the complainant’s injuries and referred to the evidence that was led in respect of the appellant’s good character and the use that could be made by the jury of that evidence.
82On appeal, the appellant submits that the trial judge’s failure to relate the evidence of inconsistencies in the complaint’s evidence to the appellant’s position that the jury should be left with a reasonable doubt constitutes a reversible error. The appellant relies on R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), to support his argument that it was simply not enough for the trial judge to convey to the jury that the evidence, including the alleged inconsistencies, had been reviewed at length by defence counsel in his closing submissions.
83I disagree. The adequacy of jury instructions in each case depends on the specific facts of that case and, accordingly, this court must take a functional approach to assessing the adequacy of a trial judge’s jury charge. The present case is different from MacKinnon in a number of key respects. In MacKinnon, not only was the trial lengthy, but the accused also testified in his own defence and denied involvement in the alleged offence. Further, defence counsel objected to the trial judge’s failure to relate the evidence to the defence position and this objection was disregarded by the trial judge. The present case is more analogous to R. v. Ambrose and Hutchison, 1976 CanLII 201 (SCC), [1977] 2 S.C.R. 717, where, at pp. 725 – 726, Spence J., for a unanimous court, stated that:
If counsel for the defence based the theory of the defence upon discrepancies in 1371 printed pages of evidence given by Crown witnesses then it was his duty in his address to outline those discrepancies. The learned trial Judge was of the opinion that counsel for the defence had done so most adequately and was, therefore, I think, properly of the opinion that it was neither necessary nor desirable that he should repeat the outline of those discrepancies in his charge…To have burdened the jury with a recital of discrepancies which had already been outlined in the very long and most complete address of counsel for the accused would not have served any useful purpose and might well have so confused the jury as to detract from their efficient discharge of their sworn duty.
84In my view, the above comment equally applies to the present case, where defence counsel devoted virtually all of the 55 pages of his closing submissions to the alleged inconsistencies in the complainant’s evidence. Further, had the trial judge repeated these alleged inconsistencies in his charge to the jury, which, importantly, was given on the same day shortly after defence counsel’s closing submissions, he would then have had to balance this review with a review of the evidence referred to by the Crown in support of the complainant’s credibility: see R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, at paras. 88 – 89.
85In the present case, the trial was relatively short and the case was neither legally nor factually difficult. Submissions by both defence and Crown counsel were made on the same day as the charge and both focused on the issue of the complainant’s credibility. The only real issue for the jury was the application of the proper standard of proof, keeping in mind that the legal burden rested with the Crown. In my view, this was adequately explained by the trial judge.
2. Did the trial err in failing to instruct the jury about the relevance and permitted use of the complainant’s prior inconsistent statements?
86The trial judge instructed the jury that, in assessing the credibility of each witness, they should take into account, among other things, “any inconsistencies in his or her testimony”. The trial judge repeated this instruction when he later recharged the jury on this issue. No objection was made at trial to this aspect of the charge or the recharge. Given that both Crown and defence counsel devoted most of their submissions to addressing the alleged inconsistencies in the complainant’s evidence and the significance thereof, I presume that the trial judge and both counsel concluded that the jury was acutely aware of the need to consider them in their credibility assessment and, accordingly, that no further direction was required from the trial judge. Therefore, on the facts of this case, I do not consider that the charge was deficient in this regard.
87My colleague has raised the concern that a limiting instruction ought to have been given by the trial judge with respect to the use that could be made of prior inconsistent statements. I do not consider that such an instruction was necessary in the circumstances of this case, for a number of reasons. First, the Crown did not ask the jury to rely on the complainant’s prior inconsistent statements. The prior inconsistent statements were elicited and relied on by the defence in an attempt to impeach the complainant’s credibility. Second, the complainant largely acknowledged her prior inconsistent statements in cross-examination and, accordingly, it was only her explanation of the inconsistencies that was in issue. Finally, in my view, a limiting instruction would have risked confusing the jury and would have been of dubious benefit.
3. Did the trial judge err in failing to instruct the jury in respect of the limited use that could be made of evidence of recent complaint?
88The appellant argues that the trial judge erred in failing to instruct the jury that evidence of recent complaint could not be used as proof of the offence charged. I do not consider that such an instruction was necessary. This evidence was admissible in order to rebut the defence allegation of recent complaint, and the Crown did not invite the jury to rely upon the statements for the truth of their contents. Further, to some extent, these statements were actually relied on by the defence in an attempt to impeach the complainant’s credibility.
89The need for a limiting instruction in respect of evidence of recent complaint depends on the facts of each case. In my view, such an instruction was unnecessary in this case and, further, its inclusion in the charge ran the risk of confusing the jury. Moreover, a limiting the instruction would, to some extent, also have highlighted to the jury just how quickly after the incident and consistently the complainant complained of being sexually assaulted, which would only have served to assist the Crown to the detriment of the defence.
4. Did the trial judge err in failing to give proper instructions to the jury concerning the requisite intent for party liability?
90I agree with my colleague that the trial judge’s instruction in this regard did not constitute a reversible error.
5. If the trial judge did err by giving inadequate instructions to the jury, should the curative proviso be applied?
91Despite the error in the charge, I would nonetheless maintain the conviction because, in my view, there was no substantial wrong or miscarriage of justice in this case. I reach this conclusion for two reasons.
92First, I view the errors to be harmless and, on the facts of the case, they would have had no impact on the verdict. When the charge and the submissions of counsel are considered together, it is clear to me that the jury was left with a proper understanding of both the relevant evidence and the law and knew the task with which they had been charged, despite the alleged deficiencies in the jury charge raised by the appellant.
93Second, this was a very strong Crown case. Corroboratory evidence was led to support the complainant’s evidence that she was forced up to the hotel room and that she was in a visible state of distress following the assault. It is undisputed that the appellant was present when a beer bottle was repeatedly inserted into the complainant’s vagina with considerable force and that the complainant suffered a significant injury as a result. It is simply implausible on the facts of this case that the complainant consented to a person virtually unknown to her tearing off her underwear and using a beer bottle in this fashion while she lay in a room that she shared with her best friend in the hotel at which they both worked. The appellant did not testify and, absent a different narrative of events, there is simply no reasonable possibility that, but for the inadequacies in the trial judge’s charge, the jury would or could have reached a different verdict.
Conclusion
94For these reasons, I would dismiss the appeal.
RELEASED:
“JAN -6 2009” “Paul Rouleau J.A.”
“JL” “I agree John Laskin J.A.”
