CITATION: R. v. Wasser, 2010 ONCA 429

DATE: 20100611

DOCKET: C47279

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leon Wasser

Appellant

Timothy E. Breen and Diana M. Lumba, for the appellant

Michael Bernstein, for the respondent

Heard and orally released: June 7, 2010

On appeal from the conviction entered by Justice F. Kiteley of the Superior Court of Justice, sitting with a jury, dated March 5, 2007.

ENDORSEMENT

[1] We are satisfied that there must be a new trial.

[2] The appellant was acquitted of six or seven charges. He was convicted on count 2 of the indictment which alleged that he paid for sex with a person under 18 years of age (the complainant). We note that the indictment contained three other charges alleging similar activity with the same complainant. The appellant was acquitted on those three charges. The difference between those charges and count 2 was that he admitted the conduct underlying count 2 and denied engaging in the conduct underlying the other charges.

[3] The appellant advanced two defences on count 2. First, he alleged that the money he admittedly paid to the complainant and her friend was not paid in consideration for the sexual activity but for another reason. Second, he contended that he believed that the complainant was 18 years of age and that he had taken all reasonable steps to ascertain her age as required by s. 150.1(5) of the Criminal Code.

[4] The trial judge spent considerable time preparing her instructions to the jury with the assistance of counsel. She ultimately prepared decision trees for the jury in respect of each count. We were advised at the outset of the argument that the decision trees in the appeal book are not the decision trees that were actually given to the jury as certain changes were made after comments by counsel. We were advised of those changes and have proceeded on the basis of the amended decision trees.

[5] The trial judge’s general instructions on the presumption of innocence and the burden of proof were entirely appropriate. She turned to count 2 in her instructions and made the following statement to the jury:

Leon Wasser must take all reasonable steps to ascertain that D.B. was not under eighteen. Based on the objective and subjective evidence, has the Crown proven that he failed to take all of these legal steps?

Looking, then, at box four, if you are satisfied beyond a reasonable doubt that he took all reasonable steps to ascertain that she was not under the age of eighteen years, you follow the area to the right and enter a final verdict of “not guilty” and your deliberations on that count are over. If you are not satisfied beyond a reasonable doubt that Leon Wasser took all reasonable steps to ascertain that D.B. was not under the age of eighteen years, you take the arrow to the bottom and you enter a final verdict of “guilty”.

[6] In our view, the first sentence in the above-quoted extract is somewhat misleading with respect to the onus of proof. The second sentence correctly states the onus of proof. Unfortunately, the next paragraph contains a twice repeated serious misstatement of the burden of proof.

[7] The trial judge made subsequent references to the burden of proof as it related to the question of reasonable steps to determine the complainant’s age in count 2. Two references to the burden of proof were accurate in that they indicated that the Crown was required to prove that the appellant did not take all reasonable steps. A third reference, while somewhat unclear, was also accurate.

[8] We note that the trial judge, in giving the above-quoted instruction to the jury, which was clearly in error, specifically directed the jury to the language of question 4 of the decision tree:

Did Leon Wasser take all reasonable steps to ascertain that [the complainant] was not under the age of eighteen years?

[9] Without explanation that language, which is taken from the relevant Criminal Code section, suggests that there was an onus on the appellant to take steps to determine the complainant’s actual age. Given that implication in the language, it was especially important that the trial judge make it clear that the Crown carried the burden of establishing beyond a reasonable doubt that the appellant did not take all reasonable steps.

[10] The jury was given conflicting and confusing instructions on the burden of proof as it related to the question of reasonable steps to determine the complainant’s age. In our view, having regard to the totality of the instructions, there is a reasonable possibility that the jury may have been misled by the different instructions, or at least left in a state of uncertainty as to the law to be applied by the jury on this issue: see R. v. Brydon (1995), 1995 CanLII 48 (SCC), 101 C.C.C. (3d) 481.

[11] Counsel for the respondent points out that there was no objection taken. He properly emphasizes the absence of any objection given the exhaustive manner in which the jury instructions were vetted with counsel. In our view, however, the absence of any objection has little significance in the face of what was an unequivocal error by the trial judge in her description of the burden of proof.

[12] There are two further points to be made about the trial judge’s instructions. First, the trial judge did not address the question of the appellant’s subjective belief as to the complainant’s age as a distinct issue. Nor did she refer to the evidence relevant to that issue. Instead, she proceeded directly to the question of the appellant’s reasonable belief with respect to the complainant’s age and the evidence relevant to that issue.

[13] It would have been better for the trial judge to treat the two issues separately and to first instruct the jury that it was the appellant’s position that he honestly believed that the complainant was 18 years of age. The trial judge should then have reviewed the evidence pro and con to that position before turning to the question of the reasonableness of that belief and the evidence pertinent to it. As a matter of logic, the issues should be approached in that way, although we accept that there is merit to the Crown’s contention that the manner in which they were approached may have enured to the appellant’s benefit.

[14] Second, we are satisfied that the trial judge did not make it as clear as she could have that the Crown was required to prove that the appellant knew at the time he gave the complainant and her friend the money, that the money was being given in exchange for sexual services. While parts of the instruction make that requirement implicit, its centrality to the appellant’s defence on count 2 dictated that the trial judge should have expressly instructed the jury on the knowledge requirement as it relates to this element of the offence.

[15] The appeal is allowed and the conviction on count 2 is quashed.

[16] Given our disposition of the issue, we are satisfied that it is unnecessary to address the constitutional issue. We note that the issue was not raised at trial and we think it would better to await a case where the issue has been properly vetted at trial before it is considered in this court.

[17] Counsel for the appellant asks that this court enter a stay or an acquittal. He observes that the sentence has been served and that the verdict will create logistical problems if there is a re-trial on count 2 only. We see no reason to depart from the usual order. The conviction is quashed and a new trial is ordered. It will be for the Crown to decide whether to proceed with that trial.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“Robert J. Sharpe J.A.”