DATE: 20010406
DOCKET: C33246
COURT OF APPEAL FOR ONTARIO
CHARRON, FELDMAN and MacPHERSON JJ.A.
B E T W E E N :
D. Fletcher Dawson,
HER MAJESTY THE QUEEN
for the appellant
Respondent
- and -
Graham Zoppi,
for the respondent
CHRISTOPHER HUMPHREY
Appellant
Heard: February 8, 2001
On appeal from his conviction by Justice J. Kennedy, sitting with a jury, on June 11, 1999
CHARRON J.A.:
1. Overview
[1] Following a trial by judge and jury, the appellant was convicted of sexual assault and sentenced to a period of imprisonment of thirty months. He appeals against conviction on grounds related primarily to the trial judge’s charge to the jury on the element of consent and his answers to related questions from the jury.
[2] In my view, the jury was not properly instructed on two essential elements of the offence: the complainant’s lack of consent; and the accused’s knowledge of her lack of consent. These errors related to crucial issues in the trial. Consequently, I would allow the appeal and order a new trial.
[3] The charge arose out of an incident alleged to have occurred on July 31, 1998. It was the theory of the Crown at trial that the appellant, after an evening of drinking, taking drugs and partying with the complainant, had sexual intercourse with her at a time when she was unconscious and, consequently, unable to give consent. The appellant contended that there had been consensual foreplay, but no sexual intercourse. He maintained that the complainant was willing to have sexual intercourse but that she had passed out before they had sexual relations.
[4] The complainant had no memory of the incident in question. Physical and scientific tests provided no evidence that intercourse had taken place. Hence, the Crown’s case essentially turned on the testimony of a friend of the complainant whose observations of the appellant with the complainant in his bedroom had led her to believe that they were having sexual intercourse.
[5] Before reviewing the evidence at trial and discussing the issues on appeal, two factual considerations are important to keep in mind. First, while the extent of the complainant’s professed amnesia was highly contentious at trial, there was no doubt on the evidence that she passed out at a point in time when she was alone with the appellant in his bedroom. Second, there was no suggestion at trial, indeed there was no evidence, that any physical contact between the complainant and the appellant was non-consensual, up until the moment she passed out. Hence the charge against the appellant could only be made out if the jury was satisfied beyond a reasonable doubt that he engaged in sexual activity with the complainant, knowing that she had passed out and could no longer consent.
2. The evidence at trial
[6] The complainant, Anne, and her friend Sue (not their real names), both 19 years of age, had known each other since grade school and were best friends. They both worked as waitresses and “shooter girls” in London bars. In addition to seeing each other at work, they would usually socialize several times a week, usually for evenings out drinking.
[7] On July 31, 1998, the two friends met at Anne’s sister’s place around 10:00 p.m. where they each had a vodka and orange juice. Neither had consumed alcohol or drugs earlier that day. They then drove in Anne’s car to a nearby bar called “The Shot”. They had been invited to attend at The Shot by the owner, Michael Etherington, who had agreed that he would pay for their drinks. Anne and Sue each consumed two other vodkas at The Shot over a period of approximately one hour. They then drove to another bar in search of Sue’s boyfriend. Since they did not find him, they returned to The Shot without consuming anything at the other bar.
[8] The testimony of Sue and Anne about events up to this point in time was essentially the same. However, Anne testified that, upon her return to The Shot, everything started to get “blurry”. From that time on, she could only remember “bits and pieces” (none involving the appellant) about the evening at The Shot, and remembered nothing about the events at the appellant’s apartment.
[9] After Sue and Anne returned to The Shot, they drank alcohol and danced. Sue related an incident when they were watching two girls dancing who were “right out of it” either drunk or on drugs. According to Sue, Anne expressed the wish to have something to make her feel “that good and have a good time like they’re having.” At that point, Etherington left and came back with three pills of Ecstasy. They each took one pill.
[10] Sue testified that Ecstasy enhances one’s mood and helps one to feel the music. Anne testified that she could not recall taking Ecstasy on the night in question but agreed that she had taken it one time before. Sue testified that they had taken this drug three times before.
[11] Shortly after Sue and Anne took the Ecstasy, the appellant walked into the bar. They had met him a couple of times before. The appellant also knew Etherington. Sue testified that Etherington obtained a pill of Ecstasy for the appellant and that he took it with his beer. After this, they were all dancing together. Sue testified that she and Anne were both acting silly, “dancing, partying” and that they “didn’t have any worries that night”, although Sue did feel ill at certain times during the evening.
[12] Around closing time, Etherington suggested that they go to the appellant’s place while he closed the bar and said that he would join them later at 3:00 or 3:30 a.m. The appellant drove in his car and Anne followed with Sue in her car. Anne said she was fine to drive and Sue accepted this. Sue testified that Anne’s driving was normal and that she even negotiated a narrow laneway outside the appellant’s apartment without difficulty.
[13] When they got to the appellant’s apartment, the appellant started to fiddle with some DJ equipment. Anne and Sue started to dance. Sue said that Anne “wasn’t herself”. She was laughing a lot, and stumbling when she was dancing. At one point, Sue went to the appellant’s bedroom with Anne and they began to jump on his bed. They then returned to the living room. Sue went to sit on the couch because, again, she was not feeling well. She attributed this to the effects of the Ecstasy. The appellant said he would get them something that would make them feel “really good”.
[14] Sue testified that the appellant came back with two glasses containing a red liquid. He held one glass while Anne drank from it. The appellant drank some of the liquid also. Sue did not take any. The liquid contained the drug GHB mixed with Kool-Aid. Sue testified that she knew GHB to be a drug used sometimes to offset the effects of Ecstasy, and to relax you and bring you down if you have been partying. Dr. Daryl Mayers, a toxicologist at the Centre of Forensic Sciences, testified that both Ecstasy and GHB can enhance sexual desire.
[15] Sue further testified that both she and Anne had taken GHB prior to the evening in question. On that prior occasion, it had been described to them as the “date rape drug”, and after that explanation they took it voluntarily. Anne agreed that she was present on that prior occasion but denied that she had taken the drug. She also denied that the effects of the drug had been explained to her. Sue testified that, on the night in question at the appellant’s apartment, there was again discussion about the red liquid being the date rape drug. While the appellant encouraged Anne to drink it, Sue agreed that Anne drank it voluntarily and that Anne was encouraging Sue to drink the drug as well telling her that “it’s our night to be out”.
[16] Sue testified that after consuming the GHB, the appellant and Anne continued to dance and the appellant made some sort of remark about Anne’s breasts. About ten minutes later, Anne went to the appellant’s bedroom and the appellant followed her there. Sue remained seated on a couch smoking a cigarette. Periodically she would lean forward to knock the ash off her cigarette and would make brief observations of what was going on in the bedroom. These observations were made on three separate occasions. Sue claimed that when she leaned forward she could see a portion of the bedroom through French doors separating the bedroom from the living room area.
[17] Sue’s first observation into the bedroom lasted for a few seconds. She could not tell if Anne was seated or lying on the bed. She could see Anne’s legs and feet but could not see her upper body. She could see the appellant’s whole back. He was standing between Anne’s legs. He was not wearing a shirt but he had his pants on.
[18] About two minutes later, Sue leaned forward again. Anne’s head was to one side and Sue could see her whole face. Her mouth was open a little, her eyes were shut and there was no movement at all. The appellant was still facing away from Sue. His pants and underwear were down to his knees and he was holding Anne’s legs on either side of himself. Sue testified that she had the impression that something sexual might be going on. She agreed that she could not see the genital area of either Anne or the appellant, nor could she tell if the complainant’s underwear was on or not. She made no mention of any movements indicative of intercourse in describing what she saw.
[19] When Sue leaned forward a third time she saw the appellant grabbing Anne by the hips and pushing her up the bed so her head would be by the headboard. She was diagonal on the bed and her dress was up and she saw the appellant pull the dress down. Sue testified that Anne looked like she was either sleeping or dead. The appellant came out of the bedroom wearing boxer shorts. He had been in the bedroom a total of ten to fifteen minutes. Soon after the appellant came out of the bedroom, other individuals arrived to continue the party.
[20] At some point, Sue went in to check on Anne and became concerned when she could not rouse her. She contacted friends by telephone and eventually Ben Vandepeer and others came to the appellant’s apartment. Vandepeer and one other carried Anne out and initially brought her to a friends’ place. At that point Sue revealed that Anne had consumed drugs and she was brought to the hospital.
[21] Sue later met with Anne at the hospital. At some point after arriving at the hospital, Sue indicated that a “rape kit” may be necessary for Anne. Sue, in the presence of Anne’s sister, asked Anne if she remembered “being with Chris” (the appellant) that night (meaning sexually) and Anne said “no that didn’t happen.” Sue told her that it did and testified that Anne stated, “No, it couldn’t have happened. I wouldn’t do that.” Defence counsel objected to this evidence as hearsay and evidence of sexual reputation. The following day, the trial judge instructed the jury to disregard this evidence. However this evidence was revisited in the charge and recharge to the jury and will be discussed later.
[22] After Sue met with Anne in the hospital, sexual examinations were conducted at a different hospital, Anne’s mother attended the hospital and the police became involved.
[23] The appellant testified. His version of events was much the same as Sue’s up to the time when he got to the bedroom with Anne, except that he testified that it was Anne who asked him to get some GHB. He also testified that while dancing with Anne at the apartment, she began to rub her breasts and squeeze them together and at one point pulled them out of her dress. When she was dancing she was flipping up the back of her dress and he could see her buttocks.
[24] The appellant testified that Anne was grabbing his arm and saying that he had a hot body. Sue agreed that Anne grabbed the appellant’s arm but did not remember her commenting on his body. He stated that she took him by the wrists and led him into the bedroom through the double French doors. She then began to kiss him. The appellant testified that, from memory, if Sue leaned forward from the location where she was sitting, it was his belief that she would only be able to see the foot of the bed, and not the area where he and Anne were located.
[25] The appellant testified that he and Anne kissed, that he pulled down the front of her dress and fondled and sucked her breasts. She then sat on the edge of the bed and undid his pants and performed oral sex for a couple of minutes or more before indicating that she wished to have sexual intercourse. At that point, the appellant told Anne he would be right back. He left the bedroom by a second doorway that led in to an adjacent hallway and looked for a condom in his roommate’s room and the bathroom. He was wearing boxer shorts.
[26] The appellant was not able to locate a condom. He went back to his bedroom and found Anne squatting and urinating on the bedroom floor. He called her name but she did not look up. He was shocked and stood there until she was finished. He then grabbed her by the shoulders and was shaking her but she seemed incoherent. He lifted her up onto the bed and pushed her back up on the bed. Her dress was on but her underwear was around her knees. He lifted her legs onto the bed and took the panties from around her knees and threw them beside the bed, where they were later found by the police. He explained that it would be too hard to pull the panties up and it did not look good with them around her knees. He testified that at no time did he have sexual intercourse with the complainant.
3. The Crown and defence theories at trial
[27] The Crown contended that the only inference that could be drawn from Sue’s testimony was that the appellant had sexual intercourse with the complainant when she was unconscious. The Crown relied in particular on Sue’s observation the second time she looked in the bedroom when she saw the appellant holding Anne’s legs on each side of him with his pants down, Anne’s mouth open, her eyes shut and not moving.
[28] The defence contended that Anne’s professed amnesia was inconsistent with the evidence of other witnesses, including the testimony of Dr. Mayers, a forensic toxicologist employed at the Centre of Forensic Sciences. The defence took the position that Anne’s inability to recall events was a cover up to avoid explaining her drug taking and her conduct to her family and that a negative inference should be drawn from her failure to testify about the events of the evening.
[29] The defence further argued that there was no evidence of sexual intercourse other than Sue’s assumption that sexual intercourse was taking place, an assumption made by a witness who was not completely credible because she had been drinking and taking drugs herself and had given prior inconsistent statements about her observations of the events in the bedroom. The appellant noted the following weaknesses and inconsistencies in Sue’s testimony. She could not remember if there were any lights on in the bedroom when she made her observations. The appellant and Sue’s friend, Ben Vandepeer (who arrived later), said there were no lights on in the bedroom and described it as “fairly dark inside.” In her trial testimony, Sue stated that the appellant was at all times standing beside the bed, and was never lying on top of the complainant. In her statement to the police, she had said that the appellant was lying on top of the complainant in the middle of the bed. Sue maintained that her trial recollection was accurate. Ben Vandepeer, who was later called by Sue to assist in removing Anne from the appellant’s apartment, testified that when he was eventually told by Sue that there was a sexual aspect to the matter, Sue told him that she looked into the bedroom and saw Anne on top of the appellant and that they were having sex. Sue denied that she made such an observation or said this to Vandepeer.
4. The trial judge’s charge to the jury
[30] The trial judge identified seven elements of the offence that the prosecution needed to prove. The first four were identity, time and place, the application of force directly or indirectly, and the intention to apply force. Element five was that the complainant did not consent to the application of force. Element six was the appellant knowing that the complainant did not consent. Element seven was that the assault was of a sexual nature. The trial judge correctly instructed the jury that the serious issues with respect to the case were related to elements five and six.
[31] On the issue of consent, the trial judge instructed the jury in words that were objected to by both Crown and defence counsel. The impugned portion of the instruction is highlighted for ease of reference:
The fifth element the Crown must prove is that [Anne], the complainant, did not consent to the application of force by the accused.
For the purposes of sexual assault, the law defines consent as the voluntary agreement of the complainant to engage in sexual activity. The law also defines various situations where consent is not obtained.
For example, no consent is obtained where the complainant expressed, either by words or her conduct, a lack of agreement to engage in the sexual activity.
If you are satisfied beyond a reasonable doubt that the complainant did express this lack of agreement by her words or conduct, then you must find that there was a lack of consent to the application of force by the accused.
If you accept [Anne]’s evidence, that is she would never have had sex with the likes of the accused, it is unlikely that she would have consented to the foreplay reported to have occurred by the accused and it is likely, in this event, that you will be satisfied that the Crown has proven this element.
On the other hand, the accused’s evidence is that the complainant was a willing if not eager participant and in fact his reports of these events were her idea.
If you accept this evidence, that is the evidence given by the accused in this respect, then you will find that the Crown has failed to establish this element. You would therefore not have to proceed further. [Emphasis added.]
[32] Both Crown and defence counsel objected to the trial judge’s reference to “Anne’s evidence” that “she would never have had sex with the likes of the accused”, and to other aspects of the instruction. In my view, the objections were well founded. There are a number of difficulties with this instruction. I will deal firstly with the reference to “Anne’s evidence”.
[33] There was no evidence whatsoever from Anne that she would never have had sex with the appellant. In her testimony, Anne did not comment one way or the other on this issue. Rather, she testified that she had no recollection of even seeing the appellant on the evening in question. The trial judge’s reference to this piece of evidence obviously related to Sue’s testimony about her conversation with Anne in the hospital where Anne was reported to have stated “No it couldn’t have happened. I wouldn’t do that.”
[34] This evidence was inadmissible hearsay and the jury had already been instructed to disregard it during the course of the trial. Consequently, the reference to this evidence in the trial judge’s charge, highlighting it as the most cogent piece of evidence on the issue of consent, could only serve to confuse the jury. The error was exacerbated by the fact that the trial judge’s reference expanded on Sue’s testimony in a manner that reflected negatively on the character of the appellant. Sue never reported Anne as saying that “she would never have had sex with the likes of the accused.” Her statement that she “wouldn’t do that” was much more general and, if it had been admissible for consideration by the jury, would be open to different interpretations.
[35] The disputed portion of the charge was erroneous, not only because it referred to, and expanded upon, inadmissible evidence, but also because it invited the jury to base its conclusion on the issue of consent on the likelihood of certain events, thereby incorrectly setting the standard of proof too low. The jury was told that if they “accepted” this inadmissible evidence, it would make it “unlikely that she would have consented to the foreplay reported to have occurred by the accused and it is likely, in this event, that you will be satisfied that the Crown has proven this element.” This instruction, in my view, invited the jury to conclude that the Crown had proven this element if they found it more likely that the complainant did not consent, a standard much lower than proof beyond a reasonable doubt.
[36] The instruction was also confusing because it focused on “the foreplay” reported by the appellant rather than on the real issue in the case, namely whether there had been sexual intercourse without consent as contended by the Crown. Quite apart from being unhelpful, the jury could have understood from this instruction that a rejection of the appellant’s testimony, in and of itself, could constitute proof that the complainant did not consent. The instruction that immediately followed, on how the jury was to consider the appellant’s evidence, further exacerbated the difficulty.
[37] The jury was told that if they “accepted” the evidence given by the accused, “then you will find that the Crown has failed to establish this element.” While this instruction was correct, it was incomplete. The jury may have erroneously understood that they had to accept the appellant’s testimony before they could conclude that the Crown had failed to prove consent. The jury was never told, in the context of this instruction on consent, that even if they did not accept the appellant’s testimony, they still had to acquit him if they had a reasonable doubt on this issue. A reasonable doubt could have arisen from the appellant’s testimony even if they did not fully accept his version of events. This was particularly so on the facts of this case, where there were a number of parallels between the appellant’s version of events in the bedroom and Sue’s observations. A reasonable doubt could also have arisen from other evidence in the trial. For example, even if the jury fully accepted Sue’s evidence, they could still have had a reasonable doubt on the question of consent. Sue’s testimony was by no means conclusive on the question whether there had been sexual intercourse as contended, let alone on the issue of consent. Finally, a reasonable doubt could have arisen from a lack of evidence. In this respect, the jury was given no assistance on how they should assess Anne’s evidence notwithstanding that this was an important part of the defence theory. On the evidence, it was open to the jury to find that the complainant was lying about the extent of her amnesia and, in effect, refusing to give relevant evidence on this issue. Such a finding could have given rise to an adverse inference on this issue which, in and of itself, could have given rise to a reasonable doubt on this element of the offence.
[38] For the sake of completeness, I also note, on the issue of consent, that the trial judge read for the jury part of s. 273.1 of the Criminal Code, R.S.C. 1985, c. C-46. He correctly instructed them that consent means the voluntary agreement of the complainant to engage in the sexual activity in question and that no consent is obtained if the complainant is incapable of consenting to the activity. To “clarify things”, he told the jury that “you cannot consent if you are unconscious. The law requires consent that is conscious and continuous, i.e., during all acts. The consciousness must be continuous.” No objection is taken to this part of the instruction.
[39] In response to Crown and defence counsel’s objections to the charge on consent, the trial judge agreed to recharge the jury. He gave them the following instruction:
The other problem in my charge to you is that I did exactly what I did not want you to do, and that was I failed to remember that the evidence of the complainant’s feelings about the accused, that is that she would never be with the likes of him, came from the hearsay evidence of the witness, [Sue].
And I specifically told you early in this trial, that you were to disregard that evidence and having done that, I turn around and tell you to consider it and that is a mistake and I am glad that you are with me on that, because that was the wrong thing for me to do.
So you must come to your conclusions as to whether or not the complainant would object to sexual advances from the accused, whether she would reject him or whether she would be attracted to them on the basis of other evidence in this case.
And I will leave that to you to do, because you have heard the evidence as have I, but you must not consider the hearsay evidence of the witness [Sue] that I told you to reject.
So, having said that, and hopefully clarifying things for you, I will let you go about your business. Thank you very much, you may retire.
[40] Other than instructing the jury to disregard Anne’s hearsay statement in the hospital (again incorrectly expanded upon to include matters never reported by Sue), the recharge failed to address the concerns of counsel, as evidenced by their further objections to the recharge. Nor did it address the concerns discussed earlier.
[41] Although the trial judge correctly instructed the jury that the serious issues in the case related both to consent and to the accused’s knowledge of the lack of consent, very little emphasis was placed on this latter element in the charge to the jury. The following is the most comprehensive instruction on this issue contained in the charge:
The sixth ingredient that I wish to address next is knowledge of lack of consent. The sixth ingredient that the Crown must prove is that the accused knew that the complainant did not consent, or in this case, did not consent validly to this activity.
If you accept the accused’s evidence that there was consensual foreplay, then of course you will not need to consider this issue at all.
[42] This instruction was confusing. Again, as was the case with the instruction on consent, the reference to the accused’s evidence of consensual foreplay distracted the jury from the real issue in the case, whether there had been sexual intercourse without consent as contended by the Crown. Further, it is not clear what was intended by the words “or in this case, did not consent validly to this activity.” Presumably, in the context of this case, the trial judge must have intended to tell the jury that it was necessary for the Crown to prove that the accused knew that the complainant became unconscious and that she could no longer give a valid consent when he pursued or engaged in sexual activity with her. However, it is not at all clear that the jury would have understood this requirement. Their likely confusion on this issue may well explain their later question, which forms the subject-matter of the next ground of appeal.
5. Questions from the jury
[43] During its deliberations, the jury delivered questions on two occasions. On the first occasion the jury asked two questions and on the second, one question. On the first occasion, approximately two hours after the commencement of the deliberations, the jury asked the following questions:
If [Anne] has given consent to Chris [the appellant] to penetrate her, then passes out while Chris is still inside her, does Chris lose consent?
How long did [Sue] look the second time?
[44] Before answering the questions, the trial judge sought assistance from counsel. Defence counsel submitted that there was no evidence before the court that the complainant might have lost consciousness after having given consent to the appellant to penetrate her and that the jury should be reminded to make their decision on the evidence before the court. Crown counsel agreed, stating that he did not see any evidence that would lead the jury to ask that question.
[45] The trial judge questioned counsel further on their respective views on the evidence as to when the complainant lost consciousness. Defence counsel noted the appellant’s testimony that she had lost consciousness at or about the time that he came back into the bedroom after he had gone out to look for a condom. He submitted further that the Crown had offered no evidence as to when the complainant had lost consciousness. In response, Crown counsel conceded that it was uncertain whether the complainant was conscious or not at the time Sue made her first observation but submitted that, on the second occasion, the reasonable inference was that she had lost consciousness.
[46] After hearing the submissions of counsel, the trial judge answered the jury’s questions as follows:
The first question is, if [Anne] has given consent to Chris to penetrate her, then passes out while Chris is still inside her, does Chris lose consent?
Well that is an interesting question, but it does not coincide with the evidence in this case. There is no evidence to support that scenario, the scenario reflected in that question.
So my answer to you with respect to that question is that you must make your decision on the evidence. So that is the answer.
With respect to the second question, how long did [Sue] look the second time, we have checked the evidence and the evidence is less than a minute. So that is the answer to your second question.
[47] I am mindful of the fact that the answer given to the jury was in accordance with both counsel’s submissions on how the question should be answered. However, with all respect to the trial judge and to both counsel at trial, it is my view that the jury’s first question related to the crucial issue in the case. As indicated at the beginning of this judgment, on the evidence presented at trial, proof of lack of consent was entirely based on the complainant’s unconsciousness and consequent inability to give her consent. Hence the charge against the appellant could only be made out if the jury was satisfied beyond a reasonable doubt that he engaged in sexual activity with the complainant at a time when he knew that she had passed out and could no longer consent. In this context, it seems clear to me that the first question of the jury was related to the crucial issue in the case, namely, a determination of whether sexual activity was knowingly pursued by the appellant after she had passed out.
[48] It is of fundamental importance that all questions from the jury be answered correctly and comprehensively: R. v. S. (W.D.) (1994), 1994 CanLII 76 (SCC), 93 C.C.C. (3d) 1 at 8 (S.C.C.). In this case, the answer to the jury’s question on this crucial issue was not only unresponsive, it was incorrect. In my view, there clearly was evidence to support the scenario reflected in the jury’s question. In fact, this was apparent from the very submissions of counsel in answer to the trial judge’s query on what evidence there was as to when the complainant lost consciousness.
[49] The evidence presented by the defence on this point was clear. The appellant testified that the complainant wanted to have sexual intercourse, that he left the bedroom to find a condom, and that she became incoherent and then passed out after he returned to the bedroom. On this scenario, there could be no offence because all sexual activity had ceased before the complainant lost consciousness. Of course, it was entirely open to the jury to reject this evidence.
[50] The evidence presented by the Crown on this point, and relied upon in support of its case, was not so clear. As indicated earlier, the Crown’s case turned on Sue’s observations of what went on in the bedroom. For the sake of convenience, I summarize her evidence again here.
[51] Sue’s first observation into the bedroom lasted for a few seconds. She could not tell if Anne was seated or lying on the bed. She could see Anne’s legs and feet but could not see her upper body. She could see the appellant’s whole back. He was standing between Anne’s legs. He was not wearing a shirt but he had his pants on. This evidence does not assist one way or the other in determining whether the complainant was still conscious at the time.
[52] Sue’s observations on the second occasion were crucial to the Crown’s case and it is apparent from the jury’s second question - “how long did [Sue] look the second time” that their attention was focused on this evidence. Sue observed Anne’s head to one side. She could see her whole face. Her mouth was open a little, her eyes were shut and there was no movement at all. The Crown relied on this evidence in support of the inference that the complainant was unconscious at that point in time. The Crown relied on Sue’s further observations on this second occasion in support of the inference that the appellant was engaged in sexual activity with her at the time. Sue observed the appellant facing away from her, with his pants and underwear down to his knees and holding Anne’s legs on either side of himself.
[53] On the third occasion, Sue saw the appellant grabbing Anne by the hips, pushing her up the bed by the headboard and pulling her dress. Anne looked to Sue like she was either sleeping or dead at that point in time.
[54] Hence on the Crown’s evidence, it was open to the jury to find that the complainant lost consciousness at some point in time between Sue’s first and second observations into the bedroom and that she remained unconscious thereafter. It was also open to them to find that whatever sexual activity the appellant was engaged in on the second occasion, including possibly sexual intercourse, had begun during the same time interval. Hence the scenario reflected in the jury’s question, that the complainant may have consented to penetration, then lost consciousness, following which the appellant nonetheless persisted with the sexual intercourse, was entirely plausible and consistent with Sue’s testimony.
[55] In my view, the trial judge’s answer to the jury that there was no evidence to support the scenario reflected in their question, and that they must make their decision on the evidence, would have been confusing to them. When this answer is considered in the context of the earlier instructions on the issue of consent, I am left with the concern that the jury may have mistakenly believed that, according to law, the only course open to them was to choose which theory was more likely: the Crown’s theory that there had been no consent to sexual intercourse at any point in time; or the defence’s theory that there had been no sexual intercourse. Of course, the jury was not bound to accept either theory. It was open to them to accept all, part or none of the evidence relied upon by either party.
[56] I am also concerned by the fact that the question was left unanswered and, consequently, that the jury may not have received the assistance that they required to properly determine the issues in the case. In my view, it was incumbent upon the trial judge, in answer to their question, to remind the jury of his earlier instruction that consent meant the voluntary agreement of the complainant to engage in the sexual activity in question and that there could be no consent if she was unconscious. Hence, even if consent had been given earlier, it would cease at the time the complainant became unconscious. If the sexual activity continued after the complainant was unconscious, there would be no consent, and the focus would shift to the accused’s knowledge that consent had ceased. The appellant could only be convicted if the jury was satisfied beyond a reasonable doubt that he sexually assaulted the complainant knowing that she was unconscious and no longer capable of giving her consent. The trial judge’s failure to answer this question, when considered in conjunction with the confusing instruction given in the main charge on the element of knowledge, gives rise to a real concern that the jury may never have understood this requirement.
[57] Some time later in its deliberations, the jury asked for the legal definition of sexual assault and for “only one example.” The trial judge discussed with counsel the possible meaning of the request for “only one example” and then brought the jury back in for a further instruction on the required elements of the offence.
[58] In answer to the jury’s question, the trial judge essentially repeated the contents of the main charge. Hence the recharge did not correct the deficiencies that were discussed earlier. Unfortunately, the recharge also contained a further reference to the evidence “that [Anne] would never have had sex with the accused”, albeit in a less direct fashion than the statement that had been objected to earlier. This prompted further objections from defence counsel, but the jury was not recalled.
DISPOSITION
[59] For these reasons, I am of the view that the jury was not provided with appropriate instructions on the crucial issues of the complainant’s lack of consent and the appellant’s knowledge of her lack of consent. Nor were they provided with the assistance they clearly required to decide this case. I would therefore allow the appeal, set aside the conviction and order a new trial.
(signed) “Louise Charron J.A.”
(signed) “I agree K. Feldman J.A.”
(signed) “I agree J. C. MacPherson J.A.”