DATE: 20010529

DOCKET: C32776

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– VICTOR LESLIE DUPREE (Appellant)

BEFORE: FINLAYSON, CARTHY and SIMMONS JJ.A.

COUNSEL: Bernard Cugelman, for the appellant Ian W. Bulmer, for the respondent

HEARD: May 17, 2001

RELEASED ORALLY: May 17, 2001

On appeal from the conviction imposed by Justice Peter B. Tobias, sitting with a jury, dated April 27, 1999.

E N D O R S E M E N T

[1] It is the opinion of this court that the charge to the jury in the case at bar was unsatisfactory. Specifically, the trial judge failed to adequately warn the jury about the problems that permeate this case and, accordingly, it would be dangerous to allow the conviction to stand.

[2] In terms of background, the appellant was charged with two counts of sexual assault for acts of sexual misconduct allegedly committed against two complainants, who are brothers. The two complainants did not approach the police on their own accord to complain about the sexual encounters that form the subject matter of these charges, but only spoke to the police at the insistence of, and through the arrangements made by, their mother.

[3] Before the police were contacted with regard to this matter, an allegation of impropriety on the part of the appellant had been made to a Bishop of the Church of Jesus Christ of Latter Day Saints. All of the principals in this case are members of that Church. As a result of concerns regarding the possible abuse by the appellant of the complainants’ younger brother (no charges were brought against the appellant in relation to this third brother), the complainants’ mother spoke to her sons and eventually arranged a meeting with the Bishop. Consequently, a Church Court was convened to deal with the allegations. The complainant Robert testified at trial that he was aware that the Church Court involved a solemn and serious proceeding and that it could lead to the excommunication from the Church of the appellant. Nonetheless, he gave evidence before the Church Court that the appellant had not done anything to him of a sexually improper nature. At trial, he testified that he did not tell the truth to the Church Court because he was embarrassed. The complainants’ mother testified that she grew impatient due to the length of time that the Church proceeding was taking and that as a result, she contacted the police because she wanted “something done.”

[4] In addition to the fact that the complainants, both in their twenties at the time of the alleged incidents, did not approach the police on their own, as well as the denial of sexual abuse made by one of the complainants during the Church Court proceedings, there are also other material inconsistencies in the evidence of both complainants. Furthermore, there is a charge by the defence that there was collusion in the evidence of the two complainants, and that their mother participated in this collusion. It is clear that in the case at bar, in which the appellant testified and denied all of the allegations, credibility is very much in issue. This is especially true given that there was no independent evidence capable of supporting the accounts given by the two complainants.

[5] In instructing the jury, the trial judge did not deal adequately with these salient and problematic issues and, in some instances, did not at all address certain fundamental difficulties present in the case. Indeed, the trial judge seems to have attempted to excuse the frailties in the Crown’s case by reference to the Christian values of the two complainants. He said:

What do we have? We have two young men from the same family. Big, strong young men who, have been very much involved in their Church, as has Mr. Dupree [the appellant] for many, many years. They were involved to an extent, that they travelled to the South Western United States to teach about Jesus Christ and his Father. Each went away for a term of two years. Some of the conduct of these two men after the alleged assault may be explained by their Christian beliefs; that is, to love their neighbour; to follow the dictates of Jesus Christ; and to try not to hurt anyone. I think that should be considered by you when you review the evidence because, the Church permeates all of the evidence of all parties that gave evidence as witnesses in this trial. So, they are involved very much, these two young men, with Mr. Dupree. And, they are in and out of his house a lot. And he helps them. And he is sorry for their mom who is raising four kids on her own. We all know how that is.

[6] A review of the entire instructions given to the jury reveals that the trial judge did not properly deal with the question of credibility and did not adequately draw attention to inconsistencies and suspect aspects of the evidence. Furthermore, we have concerns about the failure of the trial judge to follow the model charge set out in R. v. Lifchus, 1997 SCC 319, [1997] 3 S.C.R. 320. This is a post-Lifchus charge and, in fact, the trial judge was given a copy of that Supreme Court of Canada judgment by trial counsel for the Crown. The trial judge said that he would look at it, and he may well have modified his usual charge on account of Lifchus, but he certainly did not follow it with the requisite degree of exactitude which the Supreme Court has come to expect of trial judges.

[7] For all of the reasons above, we are of the view that the verdict is unsafe. Accordingly, the appeal is allowed, the conviction is quashed and a new trial is ordered.

Signed: “G.D. Finlayson J.A.”

“J.J. Carthy J.A.”

“J. Simmons J.A.”