DATE: 20010510

DOCKET:C34266

COURT OF APPEAL FOR ONTARIO

OSBORNE A.C.J.O, CARTHY AND LASKIN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Owen Haw

for the appellant

Respondent

• and -

A. A.

Amy Alyea

for the respondent

Appellant

Heard: December 11, 2000

On appeal from the conviction by Justice Alan C.R. Whitten dated September 24, 1999 and on appeal from the sentence imposed by Alan C.R. Whitten dated November 12, 1999.

CARTHY J.A.:

[1] The appellant was convicted of sexual assault and was sentenced to four years imprisonment. He appeals both conviction and sentence.

[2] The principal issue on the conviction appeal, as it was argued, is whether the trial judge should have left with the jury the issue of an intellectually disabled complainant’s capacity to consent in the absence of expert medical evidence as a guide. A summary of the pertinent facts follows.

FACTS

[3] The appellant was the superintendent in the building where the complainant lived. The complainant was married and aged about 40. She is intellectually disabled. The appellant did work on the apartment while the complainant's husband was at work. The allegation was that over a period of several months the appellant sexually assaulted the complainant.

[4] The appellant admitted that the complainant did not operate on the same mental level as himself or even that of his 12-year-old daughter. The mental difficulties of the complainant would be evident to anyone hearing her evidence and as now revealed in the transcript:

Q. He did what to you?

A. He raped me.

Q. Okay. You said “he raped me”. Can you tell us what you mean when you say that, H.? Can you use words to tell us what that means?

A. He put his penis in my bum and in my gina.

Q. …Who put his penis in your bum and in your gina?

A. A.A.

[5] The defence was that over a period of some months the two engaged in consensual intercourse which provided mutual comfort.

[6] At the opening of the trial, and in the presence of the jury, the trial judge conducted an inquiry pursuant to s. 16(1) of the Evidence Act to determine whether the complainant understood the nature of an oath and was able to communicate the evidence. The trial judge concluded that she may not understand the oath but was able to communicate and could testify on a promise to tell the truth.

[7] At the conclusion of the evidence and argument the trial judge distributed to counsel a draft charge to the jury. Crown counsel expressed his view in these terms:

My position is that she did not consent, and that you ought not to charge on no capacity. I say that because she is a married woman. I haven’t called any medical evidence to say she is not capable of consenting, intellectually capable of consenting, and I think that she, in the context of her marital relationship, could consent to sexual intercourse, but that the issue before the jury is did she, in fact, consent. And all the things about her handicap and her age go to whether she consented, in fact, and whether the accused’s story that she did, and what his position is, is reasonable. So it is my respectful submission that ought to be deleted. That paragraph with respect to I think it is s. 273.2.

[8] Defence counsel agreed to this position. The trial judge, however, did not agree. He referred to R. v. Bernier (1997), 1997 9937 (QC CA), 119 C.C.C. (3d) 467 (Que. C.A.), aff'd 1998 830 (SCC), 124 C.C.C. (3d) 383 where the Quebec Court of Appeal noted that a trial judge must consider the application of s. 273.1(2)(b) of the Criminal Code where appropriate. That subsection reads:

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

(b) the complainant is incapable of consenting to the activity;

[9] Accordingly, the trial judge decided that the jury should be instructed on the question of capacity and read his proposed charge to counsel:

Our law states that no consent is obtained where the complainant is incapable of consenting. A valid consent is an informed consent. Therefore, the individual must be able to understand the risks and consequences associated with the activity to be engaged in.

As a society we recognize that some of our citizens are handicapped in their ability to make informed choices and are severely lacking in the sophistication, maturity, or intellect necessary to properly scrutinize what is being requested of them. Children and mentally challenged persons are such citizens. The law seeks to protect such persons. With children the law clearly states that children under the age of 14 cannot consent. In other words, they are incapable of consenting.

With mentally challenged persons, the law does not and could not set a particular age prerequisite. Part of the problem in defining a mentally challenged person who is incapable of consenting is that it is not as clear-cut as isolating all children under the age of 14. Mentally challenged adults obviously do and are indeed encouraged to make decisions. Society seeks to normalize their existence as much as possible.

H. chose to marry R.. She chooses to pay her bills. She chooses the type of listening music that she has. Her ability must be assessed by you with an eye to exactly what her capabilities are. You have to be satisfied beyond a reasonable doubt that she is incapable of consenting to the sexual activity in question.

[10] Both counsel agreed that this charge was appropriate and the trial judge proceeded accordingly. On my reading of the transcript it appears that counsel had at this time accepted that a charge would be made and were agreeing to its form. The trial judge also charged the jury with the following:

If you believe beyond a reasonable doubt that subjectively H.B. did not consent, or that she was incapable of consenting, the Crown has discharged the obligation to prove the absence of consent. If, on the other hand, you have reasonable doubt, you must give the benefit of that doubt to A.A. and acquit him.

What this case comes down to is whether or not H.B. consented to the sexual activity committed by A.A. If you find beyond a reasonable doubt that she did not consent to the activity by her words, it is academic whether or not she was capable of consenting.

[11] Defence counsel was satisfied with this charge but Crown counsel raised concern that the jury may not have understood that capacity was not relevant if in fact there was no consent. This led to a re-charge:

Basically what I am saying is that . . . you don’t really have to go to the second issue, as it were, with respect to whether or not she is capable of consenting if you find as a fact that she didn’t consent, period. You don’t have to get into the issue of capability. But I felt for a variety of reasons that I had to leave that issue with you in any event.

ISSUE ON APPEAL

[12] On appeal, the appellant takes the position that the issue of diminished capacity should not have been left with the jury because there was no medical evidence to identify and define the complainant’s limitations in the context of the issue of consent and because lack of capacity to consent was not an issue before the jury.

ANALYSIS

[13] Capacity is a factual issue to be decided by the jury. Barring any statutory requirement there is no policy reason to establish a mandatory requirement for expert testimony. The issue should be approached on a case-by-case basis, examining whether the non-expert testimony is sufficient to make a rational finding. In State v. Summers, (1993), 853 P.2d 953 Wash. App. Div., the appellant was convicted of second-degree rape based on the victim's mental incapacity to consent. The Washington Court of Appeals held that expert testimony was not required to establish a complainant's capacity to consent.

[14] In R. v. Aminian, [1999] O.J. No. 4240 (C.A.), this court endorsed a lower court decision that suggested an intellectually disabled complainant's consent was a factually based determination: "The accused, a mature adult, would immediately observe [the complainant's] striking features and obvious mental retardation." Similarly, in R. v. K.E.T., [1990] O.J. No. 2674 (Dist. Ct.), no expert evidence was provided in the trial judge's assessment of an intellectually disabled complainant's capacity to consent.

[15] Save for exceptional circumstance, a requirement for expert testimony in assessing a special needs complainant's capacity to consent is not necessary. The jury in the present case had a full opportunity to make a rational assessment of the complainant’s capacity and to apply it to the issue of consent. They heard the s. 16(1) inquiry, they heard evidence of the complainant's capability to deal with the challenges of daily life, they heard the appellant testify about his awareness of the complainant's diminished intellectual capacity.

[16] Aside altogether from the question of the lack of expert evidence, it is my view that when Crown counsel asserted that it was not raising the issue of lack of capacity to consent, it was not appropriate for the trial judge to charge the jury pursuant to s. 273(2)(b) of the Code. At the time the charge was discussed (recited above) both counsel had completed their final addresses and the jury had heard nothing from Crown counsel about the complainant's lack of capacity to consent. In fact, Crown counsel's submissions were overwhelmingly focused on the credibility of the appellant's testimony. Further, the accused was prejudiced by being denied the opportunity to testify that he thought the complainant had the capacity to consent and, in turn, defence counsel was denied a response on mistaken but honest belief in consent.

[17] Much of what the trial judge said to the jury was an invitation to make a general finding of incapacity. The trial judge attempts, in some of his remarks, to put consent out front as the first issue but in reality it was the only issue. The single question was whether this complainant, with all her frailties, consented to the appellant’s advances. The jury might also have been influenced to make a general finding of lack of capacity to consent by the trial judge’s references to the law that children under 14 can’t consent, having heard the appellant testify that the complainant operated at a lower mental level than his 12-year-old child. The imitation to make a general finding of incapacity rendered the trial judge’s efforts to particularize less than effective and potentially prejudiced the accused. The jury instructions on this subject should have opened and closed with the observation that the complainant was married, presumably consented to intercourse on a regular basis, and can be taken to be capable of doing so on the alleged occasions.

[18] Reviewing the whole of the charge it is my view that there is a real possibility that one or more jurors may have voted for conviction on the basis of a general finding of incapacity notwithstanding the appearance of consent. That would be a miscarriage of justice and justifies a new trial.

[19] A further ground of appeal was that the trial judge should have given a cautionary warning as to acceptance of the complainant’s evidence and the need for corroboration. In fact the trial judge did refer to evidence that could be corroborative, such as the complainant lying in a fetal position and sobbing when first encountered by the police. Further, the trial judge spoke extensively of the complainant’s disability, including reference to her need to hold a stuffed animal for security, that she did not know her own age and could not read or spell. There is no question in my mind that this jury had a complete picture of the complainant’s strengths and weaknesses and needed no further assistance, beyond that given by the trial judge, to assess the critical issues.

DISPOSITION

[20] The sentence appeal is redundant, but if it had been necessary, I would not have interfered. The conviction should be set aside and a new trial directed.

Released: May 10, 2001 “CAO”

“J.J. Carthy J.A.”

“I agree C.A. Osborne A.C.J.O.”

“I agree John Laskin J.A.”