Regina v. Blazeiko [Indexed as: R. v. Blazeiko]

48 O.R. (3d) 652

[2000] O.J. No. 1819

Docket No. C33695

Court of Appeal for Ontario

Catzman, Weiler and Laskin JJ.A.

May 26, 2000

Criminal law -- Trial -- Charge to jury -- Trial judge erring in instructing jury that if they found accused's explanation to be deliberately false they could take that into account as evidence tending to prove guilt -- Deliberately false explanation can only be relied on as piece of circumstantial evidence proving guilt where there is extrinsic or independent evidence that explanation was concocted.

The accused was convicted of sexual assault. He appealed, arguing that the trial judge erred in instructing the jury that if they disbelieved the accused's explanation and concluded that it was deliberately false, they could use the false explanation as evidence of the accused's guilt.

Held, the appeal was allowed.

A false explanation, even a deliberately false explanation, cannot, without extrinsic evidence of concoction or falsification, provide circumstantial evidence of an accused's guilt. The jury was never told this, nor was the jury directed to any piece of extrinsic evidence from which they could conclude that the accused's testimony was concocted. In the circumstances, it could not be said that the trial judge's erroneous instruction occasioned no substantial wrong or miscarriage of justice.

APPEAL from a conviction for sexual assault.

R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545, 16 C.R. (5th) 240 (C.A.), apld Other cases referred to R. v. Marks (2000), 2000 4096 (ON CA), 48 O.R. (3d) 161, [2000] O.J. No. 1376 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302

Alison J. Wheeler, for appellant. Michal Fairburn, for the Crown, respondent.

[1] BY THE COURT: -- The appellant was convicted of sexual assault following a trial before Kent J. and a jury. He was sentenced to two years' imprisonment. He appeals only his conviction and advances two grounds of appeal: (1) the trial judge committed what has become known as the "Coutts error", that is he erred in instructing the jury that if they disbelieved the appellant's explanation and concluded it was deliberately false, they could use the false explanation as evidence of the appellant's guilt; and (2) the trial judge improperly exhorted the jury.

[2] We did not call on the Crown on the appellant's second ground of appeal. In our view, the trial judge's exhortation did not contain any of the inappropriate instructions found to amount to reversible error in R. v. Marks (2000), 2000 4096 (ON CA), 48 O.R. (3d) 161, [2000] O.J. No. 1376 (C.A.).

[3] We turn then to the main ground of appeal. To put this ground of appeal in context, we briefly summarize the factual background.

[4] The complainant and the appellant had known each other casually for a number of years. Shortly before the incident in question, the complainant began working for the same company as the appellant. One evening, the appellant, the complainant and another employee went out for a night of drinking and partying. At the end of the evening, the complainant accompanied the appellant to a motel room where he had planned to stay for the night. The two had intercourse and the issue in the case was whether this intercourse was non-consensual. The complainant alleged that, while they were alone in the motel room, the appellant forced himself on her and had intercourse without her consent. The appellant gave evidence and denied the offence. He testified that he and the complainant engaged in consensual touching, which progressed to intercourse, and that when the complainant said "stop", he did so. Thus, the issue of consent turned principally on the credibility of the complainant and the appellant.

[5] The appellant's submission focuses on a single sentence in the trial judge's charge to the jury. The sentence follows immediately after what is otherwise a correct W. (D.) instruction. [See Note 1 at end of document] That portion of the trial judge's charge, with the objected to sentence italicized, is as follows:

If you believe the accused's explanation, you will acquit him. Even if you do not believe his explanation it may still, either standing alone, or considered in light of other evidence, give rise to a reasonable doubt. If there is a reasonable doubt, then you must acquit him. Even if his explanation does not give rise to a reasonable doubt, because you reject it as untrue, then on the basis of all the evidence, you must determine whether you are convinced beyond a reasonable doubt of the guilt of the accused. You must remember, therefore, that because you reject the accused's explanation does not automatically mean that he is guilty. However, if his explanation is found by you to be deliberately false, you may take that false explanation as an item of evidence tending to prove his guilt.

(Emphasis added)

[6] In R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198 at p. 203, 126 C.C.C. (3d) 545 at p. 551 (C.A.), leave to appeal dismissed [1998] S.C.C.A. No. 450, Doherty J.A. emphasized the importance of distinguishing between rejecting an accused's explanation and finding an accused's explanation to be concocted. This distinction seeks to avoid convictions founded merely on disbelief of an accused's version of what occurred:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events.

(References omitted)

[7] In the light of the rationale underpinning Coutts, the trial judge's "deliberately false" instruction amounted to reversible error. A false explanation, even a deliberately false explanation, cannot, without extrinsic evidence of concoction or fabrication, provide circumstantial evidence of an accused's guilt. The jury was never told that to rely on a deliberately false explanation as a piece of circumstantial evidence proving guilt, there had to be extrinsic or independent evidence that the explanation was concocted. Nor was the jury directed to any piece of extrinsic evidence from which they could conclude that the accused's testimony was concocted.

[8] There was no evidence that the appellant's version of what occurred in the motel room was concocted. Indeed, the only possible extrinsic evidence of concoction was the testimony of Tracy Cromwell, the appellant's former girlfriend. Ms. Cromwell testified that the appellant told her to tell the police he had been with her all night while the appellant gave a more benign explanation of their conversation. The appellant admitted that he asked Ms. Cromwell to lie to the police but said that he did so because he thought the police were investigating an altercation he had had in a bar earlier that evening. However, the trial judge did not point to Ms. Cromwell's evidence as being capable of supporting a finding of concoction.

[9] For these reasons, in our view, the trial judge should not have instructed the jury that if they found the accused's explanation to be deliberately false, they could use the false explanation as evidence of his guilt. The danger in this instruction is that the jury might have concluded that the accused deliberately lied about what took place in the motel room and then improperly used what they perceived to be a deliberate lie as circumstantial evidence of the appellant's guilt.

[10] The trial judge could have given an after-the-fact conduct instruction in connection with Ms. Cromwell's evidence that the accused asked her to lie for him. Such an instruction might have been helpful to the jury. His "deliberately false" instruction was not only unhelpful, it may have misled the jury on the burden of proof.

[11] This case troubled the jury. The issue was simple and the trial was short. Yet the jury was out for six hours and had several questions, including one on reasonable doubt. We cannot say that the trial judge's erroneous instruction occasioned no substantial wrong. Therefore, in our view, the conviction cannot stand. Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.

Appeal allowed.

Notes

Note 1: See R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397.