DATE: 20000907

DOCKET: C32741

COURT OF APPEAL FOR ONTARIO

FINLAYSON, GOUDGE and FELDMAN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) David E. Harris

) for the appellant

(Respondent) )

-and- ) Philip Downes

) for the respondent

A. H. )

(Appellant) )

) Heard: August 9, 2000

On appeal from the judgment of The Honourable Mr. Justice Bruce Hawkins sitting with a jury, dated January 26, 1999 and from the sentence imposed by Mr. Justice Hawkins dated February 2, 2000.

FINLAYSON J.A.:

[1] The appellant was tried before the Honourable Mr. Justice Hawkins and a jury on two counts involving K.S., one alleging sexual assault contrary to s. 271 of the Criminal Code and the other forcible confinement contrary to s. 279(2) of the Code. He was also charged with one count of forcible confinement involving E. R. He was acquitted of the count against E.R. and found guilty of the two counts against K.S. The second count of forcible confinement was stayed under the Kienapple principle: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced to three years in prison and prohibited from possessing firearms for ten years under s. 109 of the Code. He appeals conviction and sentence. The reasons below expand upon the brief oral judgment I delivered from the bench.

The Facts

[2] K.S. (hereinafter the “complainant”) was seventeen years old at the time of the alleged offences in 1994. She had a 1993 criminal record for possession of property obtained by crime and breach of probation. She knew the appellant from the times she spent drinking and smoking marijuana with him. On the night of the alleged offence in June 1994, she was walking alone to E.R.’s house when the appellant drove by, stopped the car and asked her if she wanted to smoke some “weed” with him. She said yes and got into the car. He said that he had to go and purchase the marijuana. She explained that she had no money and he said that was fine. After purchasing it, they parked in a lot and smoked in the car.

[3] The complainant testified that after smoking the marijuana, the appellant said that he was owed something. The complainant responded that she did not have any money. The appellant said that was not what he meant. He said “I know you want me”. She replied that she did not want to sleep with him. She tried to get out of the car but he locked it. He started choking her, tore off her pants and had forced sexual intercourse with her.

[4] The appellant testified and his account of what happened in the car differed sharply from that of the complainant. According to him, the complainant performed oral sex on him in exchange for some cocaine, a transaction which was initiated by her and in which she was a consenting and willing partner.

Issues

[5] A number of issues were raised on appeal, but the court called upon the Crown with respect to only one because it appeared to be dispositive of the appeal. I propose to restrict these reasons to that issue which is in two parts:

1. (a) Was it appropriate for the trial judge to charge the jury on s.273.1(2)(c) of the Code dealing with vitiated consent?

2. (b) Could the evidence support a finding that the appellant was the complainant’s drug supplier and if that was so, did it place the appellant in a position of trust, power or authority with respect to the complainant such that it vitiated any consent on her part to engage in oral sex or indeed any sexual activity?

[6] The Crown proceeded in chief on the theory that the complainant did not consent to the alleged sexual intercourse. However, once the appellant testified that the complainant consented to oral sex in return for cocaine, the Crown asked the trial judge to instruct the jury that it was open for them to find that the complainant accommodated him sexually because he was her drug supplier. In this event, submitted the Crown, the trial judge should charge the jury that as the complainant’s drug supplier, the appellant was in a position of trust, power or authority and that any agreement on her part to engage in sexual activity was vitiated by reason of s. 273.1(2)(c) of the Code. That subsection reads as follows:

273.1 (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

[7] The trial judge charged the jury with respect to this section over the objection of defence counsel. It is submitted in this court that the change in position by the Crown amounted to an ambush of the appellant who had testified on the assumption that the only live issue before the jury was whether the appellant had agreed to either sexual intercourse or oral sex. Additionally, objection is taken to the adequacy of the instruction on this section of the Code.

Analysis

[8] The Crown concedes that the trial judge’s instruction is not a model charge and places its heaviest reliance on the argument that the jury was not misled by what the trial judge stated. It submits that in light of the verdict, it was not necessary for us to decide whether a drug dealer withholding drugs from an addict was an abuse of position, power or authority under s. 273.1(2)(c). The Crown points out that s. 273.1(2)(c) would only come into play if the complainant had consented whereupon the jury would have to consider whether the relationship between the appellant and the complainant had the effect of vitiating that consent.

[9] The Crown argues there were diametrically opposed versions of what occurred advanced by the complainant and the appellant. The complainant advanced a version of events in which vitiated consent was not an issue. The complainant vehemently denied that she had consented to sexual intercourse and struggled to get out of the car. The Crown now asserts that by convicting the appellant of both sexual assault and forcible confinement, the jury obviously accepted the complainant’s version of what had transpired and rejected the appellant’s testimony.

[10] I have a great deal of difficulty accepting this reasoning. First, the trial judge at no time instructed the jury that resort to s. 273.1(2)(c) was an alternative available to them in the event that they found consent on the part of the complainant. Second, he did not instruct them that s. 273.1(2)(c) was confined to sexual assaults under s.271 of the Code and therefore had no application to the charge of forcible confinement. The fact that the jury convicted the appellant of both counts is of little assistance in determining what consideration they gave to the effect of this section.

[11] The sexual assault and the confinement were interrelated to the point where the trial judge invoked the rule in R. v. Kienapple, supra, and stayed the count of forcible confinement to preclude multiple convictions for the same cause or matter. The jury could reasonably have believed that the complainant consented, not only to the sexual activity but to being in the car, locked or otherwise, because she had a feeling of powerlessness in the circumstances of her relationship with the appellant. Accordingly, the need for and the adequacy of the trial judge’s instruction are matters that we are obliged to consider.

[12] In looking at the instruction on s. 273.1(2)(c), we find that it is inadequate to the point of being no instruction at all. The trial judge did little more than read a portion of this section of the Code. He made no attempt to relate it to the evidence or to the issues. Furthermore, it is not clear whether the jury was being offered a different route to convicting the appellant of sexual assault, or whether the concept of vitiated consent was left with the jury as a factor to consider in assessing the credibility of the appellant; that is to say that the trial judge was simply pouring cold water on the defence by suggesting that a consent as alleged by the appellant might not be a consent at all under the particular section of the Code. Most important, the trial judge failed to instruct the jury that if the Crown was relying upon s.273.1(2)(c) to vitiate the complainant’s consent to the sexual assault under s.271 of the Code, the onus was upon the Crown to establish the factual underpinning to the section, namely that the appellant was in a position of trust, power or authority with respect to the complainant which reduced her to a state of dependency upon him such that he was able to misuse his dominant position to extract her consent to a sexual assault.

[13] If the jury were to convict the appellant on the application of the principle of vitiated consent, they would have to be satisfied beyond a reasonable doubt on all of the evidence that the appellant had misused his power or authority over the complainant because of her dependence on him as a supplier of drugs. Instead, all the trial judge said was:

The issue of consent: K. says that the sexual activity was intercourse and it was without consent. The accused says the sexual activity with K. was oral sex with consent. And in considering this evidence you should keep the provisions of the Criminal Code in section – well, you don’t care about the section, it’s s. 273.1, but what it says is what’s important to you. It is this:

No consent is obtained where the accused induces the complainant to engage in the activity by abusing a position of power.

And it is open to you to consider whether withholding a narcotic from an addict is an abuse of a position of power.

[14] It is apparent, by their question, that the jury was confused by the limited instruction that they received. The question was:

THE COURT: The jury has sent the following message:

May we have a copy of the point of law referring to sexual assault of power over someone. We believe it’s s. 273.1. Thank you.

[15] The recharge merely repeated the original instruction and was of no assistance whatsoever. The trial judge said:

THE COURT: Members of the jury, I have your request which I will read into the record:

May we have a copy of the point of law referring to sexual assault, power over someone else. We believe it’s 273.1.

Well, s. 273.1 contains a lot of directions which are simply irrelevant in this case because there is no factual or evidential basis for them. I did refer to a particular portion of s. 273.1 in my instructions to you, and I said – I think it’s pretty well verbatim what I said, and I have written it down on this card and I will read it to you and into the record again and then I will let you have this card for further contemplation if you wish. But it’s simply this:

No consent is obtained where the accused induces the complainant to engage in the activity by abusing a position of power.

And that is the section which it’s open for you to consider.

[16] It is to be noted that the trial judge restricted his instruction to “power” and omitted “authority” and “trust” as one of the relationships in s.273.1 (2)(c). There is little direct authority on the meaning of “position of power” in the subsection and when contrasted to authority and trust it is probably the broader term and as such is less formalized or structured. Nevertheless, had it been appropriate to leave the section to the jury at all, it was the duty of the trial judge to give the jury some help on its meaning in the context of criminal proceedings.

[17] The protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity is clearly the aim of s.273.1(2)(c): R. v. Ewanchuk (1999), 1999 711 (SCC), 131 C.C.C. (3d) 481 at 496-98 (S.C.C.); R. v. Audet (1996), 1996 198 (SCC), 106 C.C.C. (3d) 481 at 490ff (S.C.C.); Norberg v. Wynrib (1992), 1992 65 (SCC), 92 D.L.R. (4th) 449 at 460-64 (S.C.C.). I have no doubt that it could have application to the relationship between a drug dealer and an addicted client. However, the relationship is not one of an imbalance of power per se. This is not a case of a position of authority or trust, such as in the prototypic doctor/patient, teacher/student relationship, where vulnerability is inherent to the relationship itself. The trial judge should have instructed the jury that they must be satisfied that because the appellant was a supplier of illicit drugs to the complainant, that this relationship created a relationship of dependency that could be exploited by the appellant to vitiate the complainant’s consent to engage in sexual activity: R. v. Audet, supra: R. v. Matheson (1999), 1999 3719 (ON CA), 44 O.R. (3d) 557 (Ont. C.A.). It should have been made clear to the jury that this involved both an objective and a subjective standard: the objective relating to establishing that the relationship was that of supplier and drug user and the subjective relating to her dependency upon him as her supplier such that she could not give independent consent to his sexual advances. In both cases, the burden of proof was on the Crown.

[18] On this record, where the complainant herself was not suggesting that she had succumbed to the assault because she had become drug dependent, the section should not have been left with the jury at all. If she had been asserting what amounts in law to a vitiated consent, not only would other evidence be available to support this position, but the evidence that was introduced would be considered by the jury in a different light. Apart from this subjective failure of proof, there is little objective evidence that the complainant was a drug addict or even a user or that the appellant was her supplier during the relevant time. She testified that in the summer of 1994 when these offences were said to have occurred, she smoked marijuana and drank alcohol occasionally. She had smoked crack cocaine on one occasion. The appellant testified that when times were hard he sold marijuana and cocaine for quick money. On occasion, he exchanged drugs for oral sex and this was one of those occasions. As to the complainant, the appellant did not know that she smoked crack. He had only smoked marijuana with her and E.R., marijuana that he supplied.

[19] It also appears from the evidence of both the appellant and the complainant that some sort of non-sexual relationship arose between them after the alleged sexual assault. It is noteworthy that she did not complain to her probation officer about this assault for two years. During those two years, she saw the appellant several times and asked him for crack cocaine. Their relationship, in his words, went from friendship to one of client/customer. According to him, she became dependent on him for cocaine and they had a breakup when she was unable to pay for past deliveries.

[20] However, when we return to the night of the alleged offence in June of 1994 and address the issue of consent to sexual activity, there is no objective evidence of a client/customer relationship and no subjective evidence that the complainant consented to oral sex or any sex as a result of her dependency on the appellant as her supplier. She was adamant that she did not consent to oral sex: her testimony was that she was forced to have sexual intercourse.

[21] From the above reasons, I think it is evident that the trial judge’s instruction on the application of s. 273.1(2)(c) should not have been made. The Crown cannot attempt to discredit the defence by having a totally different theory of culpability thrown into the mix at the last moment. If it was not prepared to stand or fall on the complainant’s version of what took place in the car that evening, then it should have attempted to build its case from the outset on drug dependency and vitiated consent.

[22] Contrary to the submission of the Crown, the jury was not being asked to consider an included offence as in R. v. Groot (1998), 1998 2151 (ON CA), 41 O.R. (3d) 280, 129 C.C.C. (3d) 293 (C.A.). It was being asked at the last moment to consider a totally different legal and factual scenario. Despite the complainant’s vigorous denials about her drug dependency and allegations that she consented to a different sexual act in exchange for drugs, the jury was asked to consider whether she exchanged sex for drugs and had done so because of her drug dependency on the appellant as drug supplier. This is not a variation on the original theory of the Crown, it is a totally new theory that should not have been permitted. In any event, even if it was permissible, the instruction in issue was clearly inadequate.

[23] We cannot say with certainty that the impugned instruction was irrelevant to the jury’s consideration of its verdict or that the verdict is a safe one. There will have to be a new trial. The appeal is allowed, the verdict is set aside and a new trial is ordered.

Released: September 7, 2000 _____ Signed: “G.D. Finlayson J.A.”

GDF _____ “I agree S.T. Goudge J.A.”

_____ “I agree K. Feldman J.A.”