DATE: 20011120 DOCKET: C31301/C31302

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. A.., G. (Applicant/Appellant) and B., R. (Applicant/Appellant)

BEFORE:

DOHERTY, CHARRON and MACPHERSON JJ.A.

COUNSEL:

Sam Scratch

for the appellant, B., R.

Joe Wilkinson

for the appellant, A., G.

Gregory J. Tweney

for the respondent

HEARD:

November 13, 2001

On appeal from the conviction entered by Justice Edward F. Wren, sitting with a jury, dated November 20, 1998 and the sentence imposed on December 18, 1998.*

E N D O R S E M E N T

[1] The appellants were convicted of sexual assault. It was alleged that they and two others gang raped a 15 year old girl who had previously dated A. A. was also convicted of threatening the complainant in a telephone conversation a short time after the rapes and with breaching a recognizance. This endorsement addresses the issues raised on both appeals.

1. The Crown’s closing argument

[2] B. testified that he engaged in consensual sexual activity with the complainant after a person named “A.2” had done so. According to B.’s testimony, comments made by A.2 immediately after A.2 had engaged in sexual activity with the complainant led to B.’s consensual sexual activity with the complainant. B. said that he did not know A.2, but that A.2 was a friend of A. In cross-examination, B. agreed that once he became aware that the victim was alleging that she did not consent to the sexual activity, he made no attempt to locate or contact A.2 and did not even so much as ask A. about A.2. In closing argument, Crown counsel contended that B.’s indifference to A.2’s whereabouts, or even his existence, was inconsistent with B.’s testimony as to how the consensual sexual activity had occurred, but was consistent with an attempt to shield a co-perpetrator from exposure to the justice system.

[3] Whatever force this argument may have had, it was open to the Crown on the evidence. The Crown did not suggest that B. had an obligation to assist the police or an obligation to produce witnesses. The Crown simply argued that B.’s evidence was not credible given his own conduct after the relevant events.

2. B.'s evidence and the verdict against A.

[4] A. did not testify, but did rely on B.’s evidence to the extent that it contradicted the evidence of the complainant concerning sexual activity with A. Counsel for the appellant argues that the trial judge should have told the jury that A. was entitled to be acquitted if the evidence of B. left them with a reasonable doubt as to A.’s culpability.

[5] The trial judge repeatedly told the jury that A. must be acquitted if based on all of the evidence they had a reasonable doubt as to his culpability. The trial judge also told the jury that the onus was on the Crown to prove the absence of consent. Finally, with respect to the two conflicting versions of events advanced by the complainant and B., the trial judge told the jury that they were not to choose between the two, but must acquit the accused, if after considering all of the evidence they had a reasonable doubt as to guilt. He did not limit this instruction to B. These instructions made it clear that A. was entitled to be acquitted if the jury had a reasonable doubt as to whether his sexual activity was consensual, whatever the evidentiary source of that doubt.

[6] Even if the trial judge should have instructed the jury in the manner described by the appellant, a failure to do so caused no prejudice to A. The jury was told that it must acquit B. if his evidence left them with a reasonable doubt as to his guilt. The jury convicted B. It is impossible to imagine how the jury could have totally rejected B.’s evidence as it applied to B., but somehow had a reasonable doubt based on that very same evidence as it applied to A.

3. The "Miller" error

[7] The trial judge repeatedly told the jury that its verdict must be based on all of the evidence. Unlike R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont. C.A.), the trial judge did not tell the jury to proceed through their deliberations with a two-step approach, first determining the facts and then the verdict based on the facts as found. Nor, did the trial judge tell the jury that an acquittal could be based only on evidence that was accepted.

[8] The trial judge’s clear indication to the jury that the Crown could prove its case based only on evidence that the jury accepted as true was a correct instruction in law. Similarly, his instruction that the jury should look for evidence confirming the complainant’s evidence only in evidence it found to be credible was a proper instruction.

4. The re-reading of the complainant’s evidence

[9] The jury asked to have a part of the complainant’s testimony read to it during its deliberations. With the support of at least counsel for one of the appellants (the other said nothing), the trial judge asked the jury to clarify its request. In doing so, the trial judge distinguished between examination-in-chief and cross-examination. He told the jury that the cross-examination was more difficult to locate and read back than was examination-in-chief. The trial judge made