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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
MacPherson, Cronk and MacFarland JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
B. B.
Appellant
Dean D. Paquette, for the appellant
Benita Wassenaar, for the respondent
Heard: June 26, 2009
On appeal from the conviction entered by Justice David S. Crane of the Superior Court of Justice, sitting with a jury, on November 20, 2008 and the sentence imposed by Justice Crane on January 27, 2009.
1The appellant, together with his friend A.B., was charged with several offences in relation to his alleged non-consensual sexual activity with a 15-year old female complainant. Following a relatively short trial before a judge and jury, the appellant was convicted of sexual assault to which another person, A.B., was a party and breach of recognizance. He was acquitted on a charge of sexual assault and, pursuant to directed verdicts, on charges of sexual assault causing bodily harm and forcible confinement. He was sentenced to two months’ imprisonment (time served) on the breach of recognizance charge and three years’ incarceration on the sexual assault as a party offence. The appellant appeals against his conviction for sexual assault as a party to the offence and seeks leave to appeal his sentence of three years’ incarceration.
A. Conviction Appeal
2In our view, of the various grounds of appeal raised by the appellant in support of his conviction appeal, it is necessary to address only the appellant’s arguments that the trial judge erred by failing to caution the jury concerning the frailties of the complainant’s evidence and by failing to provide a balanced jury charge.
3At trial, the appellant admitted some of the sexual acts alleged by the complainant. However, he maintained that she had consented to the sexual activity at issue. Indeed, he claimed that the conduct at issue had been initiated by the complainant through her aggressive sexual behaviour toward the appellant and his friends.
4The Crown’s case against the appellant hinged on the complainant’s evidence. Although there was evidence at trial of allegedly incriminatory statements made by the appellant to one of his friends on the day after the incidents in question, the conviction of the appellant on the charge of sexual assault as a party to the offence was impossible without the acceptance by the jury of the complainant’s evidence
5The case therefore turned on credibility. Thus, any grounds for impeachment of the complainant’s credibility were of critical importance to the defence.
6There were significant weaknesses in the complainant’s credibility. In particular, the complainant gave two statements to the police in which she described her allegations of sexual impropriety against the appellant and A.B. On both occasions, the complainant lied to the police.
7In her first statement, the complainant knowingly implicated A.K., a second friend of the appellant who had also been present on the day in question, in an allegation of non-consensual sex that she knew to be untrue. As the complainant later admitted, A.K. in fact was innocent of the offence alleged. The complainant did nothing to correct the false information that she had provided to the police about A.K. until she was questioned further by them as part of their on-going investigation into her allegations.
8The complainant also lied a second time in her first statement to the police. In that statement, she provided an elaborate – and wholly concocted – account of a particular incident of gang rape by the appellant, A.B. and A.K. that she later acknowledged was untrue.
9Moreover, in both of her lengthy statements to the police, the complainant failed to disclose an alleged incident of non-consensual anal sex with the appellant, despite assuring the police that she had relayed all relevant information to them, until virtually the close of her second statement. This belatedly-disclosed incident formed the basis of the sexual assault charge against the appellant, of which he was eventually acquitted by the jury.
10In these circumstances, given the centrality of the complainant’s evidence to the Crown’s case and the highly material inconsistencies between the complainant’s trial testimony and her statements to the police, it was incumbent on the trial judge to warn the jury to exercise caution in basing a conviction on the strength of the complainant’s testimony. At the very least, the trial judge was obliged to instruct the jury about the legal implications of the inconsistencies in the complainant’s various versions of events for the assessment of her credibility. Apart from one cursory reference in the jury charge to one of the complainant’s admitted lies when outlining the position of the defence to the jury, the trial judge failed to provide this critical caution to the jury in any meaningful way.
11During oral argument before this court, Crown counsel responsibly conceded that the inconsistencies between the complainant’s trial testimony and her statements to the police “should have been clarified” by the trial judge. However, she argued that the jury clearly knew that the complainant had lied in her statements to the police and that the jury charge was adequate to ensure that the jury knew of the need to address the weaknesses in the complainant’s evidence. We disagree.
12We accept, on this record, that the jury was aware of the fact of the complainant’s lies and of the defence position that her evidence was unreliable and a fabrication. This was made clear in defence counsel’s cross-examination of the complainant and in counsel’s closing submissions at trial.
13But at no point in his charge or his brief recharge did the trial judge alert the jury to the legal implications of the inconsistencies in the complainant’s evidence, including her admitted lies to the police, and of the need to carefully assess those inconsistencies when determining her credibility and the appellant’s culpability.
14In the circumstances of this case, this omission was reversible error. Despite defence requests therefor, nothing in this jury charge or in the trial judge’s recharge focused the jury’s attention on the admitted deficiencies in the complainant’s evidence, the potential untrustworthiness of her testimony, and the risks of grounding a conviction thereon. For example, although defence counsel requested a corrective instruction to the jury to provide “the same clarity” regarding the inconsistencies in the complainant’s evidence as the trial judge had provided in his charge concerning the alleged inconsistencies in the appellant’s evidence and to outline “the implications of [the complainant’s] lies to the police…in terms of her credibility”, the trial judge said only this in his recharge:
As to the statements of both [the complainant and the appellant], obviously [sic] told the police lies at some point in their statements, and you know all about that, so I won’t go into that. So I won’t have you back. That’s it. You’re on your own.
15The prejudice to the defence arising from this error was compounded by the trial judge’s treatment of the evidence of A.B. in his jury charge. At trial, the defence called A.B. to corroborate certain aspects of the appellant’s version of events. Importantly, A.B.’s testimony supported the appellant’s evidence that the complainant had consented to the sexual activity in question and, as well, on the issue whether the complainant had been the sexual aggressor in her interactions with the appellant and his companions.
16Yet the trial judge’s references to A.B.’s evidence in the jury charge focused exclusively on discrepancies between A.B.’s testimony and that of the appellant. Moreover, when defence counsel specifically objected to the trial judge’s treatment of A.B.’s evidence in the jury charge, and requested the trial judge to point out the consistencies between A.B.’s evidence and that of the appellant to the jury, the trial judge failed to do so.
17Notwithstanding what arguably was a strong case for the Crown, trial fairness was fatally compromised as a result of the combined effect of the errors that we have described. The jury charge, read as a whole, unduly promoted the Crown’s case and effectively ignored or underplayed significant elements of the case for the defence. Accordingly, the appellant’s conviction on the charge of sexual assault as a party to the offence cannot stand and a new trial is required.
B. Sentence Appeal
18In light of our conclusion that the conviction appeal must be allowed, it is unnecessary to address the appellant’s sentence appeal.
C. Disposition
19For the reasons given, the conviction appeal is allowed and a new trial is ordered.
RELEASED:
“JCM” “J.C. MacPherson J.A.”
“JUL -7 2009” “E.A. Cronk J.A.”
“J. MacFarland J.A.”