COURT OF APPEAL FOR ONTARIO

DATE: 20010622 DOCKET: C34138

FELDMAN, MacPHERSON and SHARPE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Alan D. Gold for the appellant

Respondent

• and -

Ian Bulmer

for the respondent

M. G.

Appellant

HEARD: June 4, 2001

On appeal from conviction by a jury before Justice Margaret Eberhard dated February 4, 2000 and on appeal from sentence dated March 30, 2000.

FELDMAN J.A.:

[1] The appellant was charged with four counts of historical sexual offences involving the daughter of a family friend when she was between the ages of 6 and 14 years old. The appellant was convicted by a jury of three of the counts and acquitted of the fourth. The primary ground of appeal is that both in her charge to the jury on reasonable doubt and again in answer to a question from the jury about the definition of reasonable doubt, the trial judge told the jury that a lack of evidence could form the basis of proof beyond a reasonable doubt. This was in accordance with the suggested charge set out by the Supreme Court of Canada in R. v. Lifchus, [1999] 3 S.C.R. 320 before it was corrected by the court.

FACTS

[2] The complainant testified that she was sexually assaulted by the appellant about 50 times between 1980 and 1987 when she was between the ages of 6 and 14 years old. Her father was a friend of the appellant. The complainant used to spend a lot of time at the appellant’s rural residence where he raised foxes and had a lot of animals around.

[3] The first incident occurred around the time of a photograph taken of the complainant and her two brothers in February, 1980. She could not pinpoint the time any better. She said that she was in the appellant’s car with him and he was telling her how "someone" was trying to get him into trouble by saying that he had touched her. He said the complainant would know that he would never do anything like that other than grabbing her "boobs", which she said referred to a joke between the appellant and her father because at that time she did not have “boobs”. The appellant then pulled off the road into a field across from his house. He started rubbing her vagina on top of her pants, then he climbed over to her seat, undid her pants and started rubbing her vagina with his fingers. Then he had intercourse with her. She cried and asked him to stop and he put his hand over her mouth. She did not remember if she then went back to his house or if he took her to her own house. Later she found blood in her underpants and threw them out so her parents would not find out, as the appellant told her that her father would be angry because he wanted her first.

[4] Following the incident the complainant began to spend weekends at the appellant’s place without her parents. She said that she had a room in the basement where she would stay and it was there that he had sexual intercourse with her approximately 50 times. She described the basement room as her room and said that the waterbed in that room was purchased for her. At that time the appellant lived with a woman named M. W.

[5] The complainant said that the sexual activity occurred both during the day and at night but only when no one else was home. The sexual activity also involved occasions when she performed oral sex on the appellant. She said that she never told anyone, that she never hated the appellant and he was good to her other than the sexual abuse. The complainant could not provide details of any of the incidents other than the first one in the car. She said that they were all the same.

[6] The last incident occurred when the complainant was 14. She had been released from a group home and because she did not get along with her mother, her parents agreed that she could stay at the appellant’s home and attend school from there. When the appellant tried to have sex with her, she stopped him, said it would never happen again, and walked out. The appellant drove her back to her parents’ home.

[7] She first told her parents about what happened when she was 20 years old.

[8] In cross-examination, the complainant’s credibility was attacked based on several prior statements and the unlikelihood of the 50 attacks given that the appellant lived with M. W. throughout the time, together with the fact that the basement room was occupied by another girl for two or three of the years in question and the waterbed was not purchased for the complainant, but for the other girl.

[9] The complainant’s mother testified that she had no specific recollection of the complainant staying at the appellant’s place without her brother.

[10] The complainant’s father testified that while out drinking one night, the appellant told him that he “had had" the complainant, but he just laughed it off at the time thinking the appellant was trying to upset him in front of another friend. He said the complainant told him about her allegations when she was 17. He then confronted the appellant who denied it.

[11] The appellant testified in his own defence. He described how he had lived with M. W. for 20 years starting in 1977. He described his fur farm operation. He said that the complainant's brother spent time at his house, first staying for weekends, then working for him and going to school from there, but that the complainant was hardly ever there. He remembered her coming out with her parents and once with her boyfriend. He said she stayed over once in the basement room.

[12] He said the basement room was used by another girl, C. W., M. W.’s niece, and it was for her that they bought the waterbed. C. W. stayed at their place after her mother threw her out when she was 13 or 14 and she stayed with them for three years.

[13] He also recalled the complainant’s father asking him to have the complainant live with them to see "if it might straighten her out", when she was 14. The complainant's father brought her to the house and brought her belongings down to the basement. The next day she went to school, but did not return. Her father brought her back again and again she went to school but did not return. At that point the appellant and M. W. decided they could not handle the complainant and that they did not want her to stay there.

[14] The appellant was asked about the car incident and specifically denied it. He was asked about the allegation of 50 sexual assaults, which he also denied. He said he first heard the allegations about 6 years before from the complainant and her boyfriend who kept phoning and threatening him. As a result he went to the police the next day. He also denied that he told the complainant’s father, while drinking, that he had slept with the complainant.

[15] In cross-examination the appellant acknowledged that although he did not remember the complainant staying over at his place, he said it was possible, but basically C. W. stayed there for three years in the 1980’s.

[16] The appellant also called M.W., his former common law spouse, as well as her niece C. W. to testify. M. W. testified that she and the appellant had lived as husband and wife for 22 years from 1975. She described how the complainant’s brother would come out and stay with them on weekends and then eventually stayed there and helped them with the fur farming operation. However, the complainant did not come without her parents. Sometimes her parents would come out and stay in the basement.

[17] Also, her niece C. W. came and stayed and went to school from there starting in 1984 or 1985 although she was not there all the time. They bought her a waterbed.

[18] M. W. did not recall the complainant staying over. The complainant came over with her parents. M. W. recalled once when C. W. was not there that the complainant’s parents wanted her to stay with them, and there was something about a group home. She did not want the complainant to stay because it would be too hard, but the appellant wanted to try and help his friend so M. W. agreed. The complainant came but only stayed a couple of days. The complainant would not listen to them and do what she was told and she would not go to school so M. W. and the appellant phoned her father to come and pick her up. M. W. was sure that the complainant never stayed there before that incident.

[19] C. W. confirmed that her aunt M. W. was with the appellant for 20 years. She and the appellant were still friends although M. W. and he were no longer together. She described how she stayed with them in late 1984, for most of 1985 and part of 1986. She stayed in the basement. They got her a waterbed for the basement room. As far as she knew no one else used that bed while she was there. She was there during the week and on weekends the majority of the time. She remembered the complainant being there only once.

[20] The appellant was charged with the following counts:

1. . . . during the period of the lst day of January, 1980, and the 21st day of June, 1987, both dates inclusive, at the Township of Severn, in the (Central East) . . . Region, he did have sexual intercourse with G. W., a female person not his wife and under the age of fourteen years, contrary to the Criminal Code of Canada.

2. . . . during the period of the lst day of January, 1980, and the 3rd day of January 1983, both dates inclusive, at the Township of Severn in the said Region, he did indecently assault G. W., a female person, contrary to the Criminal Code of Canada.

3. . . . during the period of the 4th day of January, 1983, and the 30th day of March 1988, both dates inclusive, at the Township of Severn in the said Region, he did sexually assault G. W., contrary to the Criminal Code of Canada.

4. . . . during the period of the lst day of January, 1980, and the 3rd day of January, 1983, both dates inclusive, at the Township of Severn in the said Region, he did rape G. W., contrary to the Criminal Code of Canada.

[21] In the charge to the jury, the trial judge explained the Crown’s burden of proof beyond a reasonable doubt as follows:

. . . The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has, on the evidence put before you, satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression "beyond a reasonable doubt" mean? The term beyond a reasonable doubt has been used for a very long time and is part of our history and our traditions of justice. It is so engrained in our criminal law that some think it needs no explanation and yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or on prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or the absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand we have to remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof would be impossibly high. In short if, based on the evidence or lack of evidence before the court, you are sure that the accused has committed the offence you should convict, since this demonstrates that you are satisfied beyond a reasonable doubt of the guilt. [Emphasis added]

[22] The jury returned with the following question after several hours of deliberation: "Please give us the definition of reasonable doubt again.” After consulting with counsel, the trial judge repeated the charge on reasonable doubt in the same terms as follows:

I am going to give you the articulation that has been approved in our courts.

What does the expression 'beyond a reasonable doubt' mean? The term 'beyond a reasonable doubt' has been used for a very long time and is part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe that the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof would be impossibly high.

In short, if based upon the evidence or lack of evidence before the court, you are sure that the accused committed the offence, you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

I won't say more because anything I would do to expand that might take me into error, so I will leave you with that and send you off again and hope that you have the energy to continue for a while. [Emphasis added]

[23] Although neither counsel objected to this formulation in the original charge, after the answer to the jury’s question, defence counsel referred the court to a note by Justice Salhany where he raised the concern about suggesting to the jury that the case could be proved through a lack of evidence, and suggested further that those words amount to reversible error. The trial judge declined to recharge the jury on the basis that she was following the form mandated by the Supreme Court of Canada.

ANALYSIS

[24] It is clear that both the original charge and the repetition of the charge on reasonable doubt contained an error by referring to a lack of evidence as being capable of constituting the basis for proof beyond a reasonable doubt. That error had been corrected by the Supreme Court shortly after the release of the decision in Lifchus: see 1997 319 (SCC), [1997] 3 S.C.R. 320; (1998), 120 C.C.C. (3d) vi. Unfortunately, neither counsel nor the trial judge was aware of the correction at the time.

[25] While acknowledging the error, the Crown submits that the jury could not have been misled in this case, first because there was no basis on the evidence for the jury to convict based on a lack of evidence, and second because the trial judge made repeated reference in the charge to convicting only on the basis of the evidence. The Crown relied specifically on this court’s decision in R. v. P.S. (2000), 2000 5706 (ON CA), 144 C.C.C. (3d) 120. In that case, the same error was made in the definition of proof beyond a reasonable doubt. The court held that the error caused no prejudice to the appellant. The court could see no basis upon which the jury could have found the appellant guilty based on a lack of evidence. The court noted in that regard that the appellant testified in his own defence and called other defence witnesses and defence counsel made no objection to the charge.

[26] In my view, P.S. is distinguishable from the instant case. In P.S., the accused was found guilty by the jury of all three counts of sexual assault and sexual touching involving two complainants, and in spite of the fact that the accused testified and called other defence witnesses, this court was satisfied that the jury would not have misunderstood that they could convict based on a lack of evidence.

[27] In this case, the appellant was acquitted of the third count. That count covered the time period from 1983 to 1988. The appellant was convicted of the other three counts, all of which included the time period beginning in 1980. Based on the instructions to the jury on the definitions of the four offences charged, it is possible that the jury registered convictions on each of counts 1, 2 and 4, based only on the incident in the car and not on any of the other incidents alleged by the complainant. Although this interpretation of the verdicts was rejected by the trial judge in her reasons for sentence, in my view that is not only a possible interpretation, but the most likely one given the overlapping dates and the nature of the offences charged.

[28] In this circumstance, this court must examine the nature of the evidence in order to properly assess whether the jury may have convicted of the incident in the car based on a lack of evidence. I agree with counsel’s submission that this may well have happened, based on the following factors:

(1) The defence was a full denial of any sexual contact. However, the defence witnesses focused on the unlikelihood of anything happening in the house based on the complainant’s misperception of the basement room and the waterbed as hers, her inconsistencies in recollecting the history of her attendances at the appellant’s residence and the presence of the appellant’s then spouse, M. W. However, the only defence to the car incident was a denial by the appellant. It is therefore possible that the jury could have perceived a lack of evidence from the defence in response to the car incident as opposed to the other 50 alleged occasions of intercourse, and convicted on that basis. As counsel pointed out, it is difficult to know what the jury may have understood by the concept of proof beyond a reasonable doubt based on a lack of evidence.

(2) The jury specifically asked for a repetition of the definition of reasonable doubt and received the same misdirection twice. They then asked for the complainant’s evidence with respect to the incident in the car to be repeated. The jury came back with the verdicts one half hour later. In those circumstances, it cannot be said that their attention was not focused on the lack of detailed evidence from the defence in respect of that incident.

(3) In this case, defence counsel did object to the formulation. Unfortunately, both counsel and the trial judge were unaware that the error in the charge had long since been corrected by the Supreme Court.

(4) In P.S., this court noted that when "read fairly as a whole”, the charge would not have left the jury under a misapprehension about the meaning of the onus of proof beyond a reasonable doubt. However, in this case, that cannot be said in light of the recharge.

[29] This court recently dealt again with the “lack of evidence” error in the case of R. v. Lawler, [2001] O.J. No. 1744. In that case a new trial was ordered on the basis that the misdirection came in response to a question from the jury, the verdict came shortly after the misdirection, and the lack of evidence was an important feature of the case where the accused did not testify. Although the appellant did testify in this case, the other three factors in Lawler are equally true and applicable in this case.

CONCLUSION

[30] The error in the charge on reasonable doubt, repeated twice to the jury, requires a new trial in the circumstances of this case. Given that the appellant was acquitted on one of the counts spanning several years, this was not a case where the evidence of the complainant was wholly accepted by the jury. It cannot be said that the convictions were not based on a lack of detailed or corroborative evidence from the defence in respect of the appellant's denial of the incident in the car, as opposed to the other alleged incidents of intercourse in his home.

[31] In the result, I would allow the appeal, set aside the convictions and order a new trial.

RELEASED: "K.F." JUNE 22, 2001

Signed: "K. Feldman J.A."

"I agree J.C. MacPherson J.A."

"I agree Robert J. Sharpe J.A."