DATE: 20010524

DOCKET: C30833

COURT OF APPEAL FOR ONTARIO

MORDEN, GOUDGE and SIMMONS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Alison Wheeler for the appellant

Respondent

• and -

JAMES PETER SIPOS

M. David Lepofsky for the respondent

Appellant

Heard: April 26, 2001

On appeal from convictions imposed by Justice T.R. Lofchik, sitting with a jury, dated April 26, 1996.

SIMMONS J.A.:

[1] The appellant was tried by Lofchik J. and a jury on a thirteen count indictment in 1996. The indictment alleged a series of incidents of domestic abuse involving both physical and sexual assaults. The incidents spanned a 10-year period from September 1975 to March 1986 and related to three different complainants.

[2] The appellant pleaded guilty to and was found guilty on most of the counts alleging physical assaults.[^1] He was acquitted on the only charge alleging a physical assault to which he pleaded not guilty.

[3] The appellant pleaded not guilty to all of the counts alleging sexual offences. He was found: guilty as charged on five counts, namely two counts of indecent assault, one count of gross indecency, one count of rape, and one count of sexual assault; not guilty of buggery, but guilty of attempted buggery on two counts; and not guilty on the remaining two counts, namely one count of rape and one count of gross indecency.

[4] The appellant was ultimately declared a dangerous offender and given an indeterminate sentence. He advances several grounds of appeal against conviction on the counts alleging sexual misconduct.[^2] He also appeals from the dangerous offender designation, but only in the event of a successful appeal against conviction.

Grounds of Appeal

1) Expert Evidence: Admission, Scope and Jury Instructions

[5] The trial judge permitted the Crown to call expert evidence concerning the dynamics of abusive relationships and concerning why abused women sometimes do not report the abuse or leave the relationship.

[6] The appellant submits that the expert evidence was not admissible. Evidence of this kind is admissible only where it is necessary in the sense that it is unlikely that the trier of fact will form a correct judgment without the assistance of an expert: R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.). The inquiry concerning necessity and whether the probative value of the evidence proposed outweighs the risk of prejudice arising from its potential misuse is case specific and not a matter of precedent: R. v. K.(A.)(1999), 1999 CanLII 3793 (ON CA), 137 C.C.C. (3d) 225 (Ont. C.A.). The appellant submits that the evidence did not meet the criterion of necessity in the factual context of this case. Further, even if the evidence was admissible, the trial judge erred by failing to restrict its scope and by failing to give the jury proper instructions concerning its use.

[7] The appellant relies on the fact that he admitted physical abuse of the complainants and acknowledged his tendency to be jealous. He submits that the main issue for determination was, therefore, whether the abuse that occurred included sexual abuse. In this context the risk that the jury would improperly discredit the complainants' evidence about why they delayed in either reporting the abuse or leaving the relationship based on misconceptions about abusive relationships was minimal. The appellant submits that any risk that did exist could have been neutralized by a jury instruction cautioning the jury against relying on assumptions when assessing the complainants' evidence. There remained a very real risk that the jury would misuse the expert evidence to bolster the complainants' evidence that they had been sexually assaulted.

[8] The appellant also submits that the evidence that was given went far beyond what was necessary to make the point to the jury that the complainants' evidence should not necessarily be discredited because the complainants exhibited behaviours not uncommonly seen in victims of abuse. He points in particular to evidence that purported to characterize typical behaviour of abusers, statistical evidence as to the correlation between physical and sexual abuse, references to notorious cases of domestic homicides, and examples of abusive behaviour closely paralleling the allegations against the appellant. Such evidence was either not admissible in the first place or was unfairly prejudicial to the appellant.

[9] Finally, the appellant submits the trial judge's instructions to the jury concerning the use they could properly make of this evidence were inadequate because the trial judge failed to caution the jury against propensity reasoning, failed to warn the jury about inadmissible or inflammatory references, and failed to caution the jury that they could not use the evidence to bolster the complainant's credibility save to the extent it assisted them in determining whether to draw an adverse inference from delay in either reporting the abuse or leaving the relationship.

[10] I would not give effect to these grounds of appeal. Many of the contested charges involved allegations of significant abuse. Although the appellant acknowledged some physically assaultive behaviour, he contested the number and extent of physical assaults that were alleged. He also disputed the allegations that he had sexually assaulted any of the complainants and challenged their explanations for failing to report sexually abusive behaviour. The period of delay from the alleged incidents to the laying of charges was substantial.

[11] I agree that domestic abuse cases involving delays in disclosure or in leaving a relationship should not be viewed as automatically creating a need for expert evidence. In the circumstances of this case, however, I consider that it was open to the trial judge to admit expert evidence to counteract the risk that the jury would discount the level of abuse that occurred based on misconceptions about abusive relationships. The trial judge is in the best position to assess the need for expert evidence. I see no basis for interfering with his exercise of discretion in this case.

[12] Contrary to the appellant's assertions, I consider that the trial judge's instructions made clear to the jury that the only purpose for which they could use the expert's evidence was to assess the complainants' explanations concerning not reporting the abuse or leaving the relationship sooner. Although it may have been preferable for the trial judge to have more closely vetted the scope of the expert evidence so that it would have focused more directly on typical reactions of persons who are abused, I am not persuaded that any prejudice was occasioned by the failure to do so in the face of the clear instructions given concerning the limited purpose for which the evidence could be used. Jurors are presumed to follow instructions given by the trial judge: R. v. Corbett (1998), 1988 CanLII 80 (SCC), 41 C.C.C. (3d) 385 (S.C.C.) at 400-403. My conclusion concerning the adequacy of the trial judge's instructions is supported by the fact that defence counsel made no objection to them. I must assume he viewed them as sufficient.

Similar Fact Evidence: Admissibility and Jury Instructions

[13] I see no basis for interfering with the trial judge's exercise of discretion in permitting the charges relating to these three complainants to proceed together and in permitting the jury to use the evidence on the various counts as similar fact evidence. I note that the trial judge severed from the original indictment four counts which related to two complainants with whom the accused had not had an ongoing relationship. The trial judge also restricted the jury from using the evidence on the counts alleging physical assaults to which the appellant pleaded guilty as similar fact evidence.

[14] No objection was made at trial to the jury instructions concerning the use of this evidence. The objections in this court were to the effect that the trial judge should have placed more emphasis on the caution against propensity reasoning and should have reviewed the similarities and dissimilarities in the evidence in detail. I am satisfied that the caution against propensity reasoning was adequate. I am not persuaded that a detailed review of the similarities and dissimilarities in the evidence would have inured to the benefit of the appellant.

Nadeau/ Challice Error[^3]

[15] The appellant submits that the trial judge erred in instructing the jury as follows:

...The ultimate issue here is did the sexual assaults or some or all of them related to you by the complainants actually take place, or are the complainants' descriptions of these events fabrications or the product of an hysterical, vindictive mind, blurred memory or overactive imaginations.

The appellant says this instruction encouraged the jury to pit the appellant's version of the evidence against the complainants' versions, and suggested that if the jury did not make a positive finding that the complainants were motivated by one of the listed factors, the only alternative was to convict.

[16] Immediately prior to giving the impugned instruction the trial judge reviewed the conflicting positions that had been presented, gave a standard W.(D.) [^4] instruction and, as well, told the jury they were not required to choose between conflicting versions of events.

[17] I agree that it would have been preferable for the trial judge to have avoided characterizing the conflict in the evidence as "the ultimate issue", and not to have restricted the reasons for discounting the complainants' evidence to a specific list. Nevertheless, I am not persuaded that this one sentence would have led the jury into error given the clear instructions that immediately preceded it.

Instruction on Reasonable Doubt

[18] The instructions to the jury in this matter were given prior to the decision in R. v. Lifchus (1997), 118 C.C.C. (3d) (S.C.C.). Near the beginning of the charge, the trial judge instructed the jury as follows:

I should now like to explain to you the presumption of innocence that applies in a criminal trial. Simply put, it means than an accused person is presumed to be innocent until the Crown has satisfied you beyond a reasonable doubt of his guilt. It is a presumption which remains in favour of the accused for his benefit from the beginning of this case to the end. The onus or burden of proving the guilt of an accused person beyond a reasonable doubt rests upon the Crown and never shifts. There is no burden on the accused person to prove his innocence or, indeed, to prove anything. The Crown must prove beyond a reasonable doubt that an accused person is guilty of the offence or offences with which he is charged before he can be convicted of those offences. If you have a reasonable doubt as to whether the accused committed any of the offences with which he is charged, it is your duty to five the accused the benefit of that doubt and to find him not guilty with respect to those counts with respect to which you have such a doubt.

Now it is rarely possible to prove anything with absolute certainty and so the burden of proof on the Crown is only to prove guilt beyond a reasonable doubt. When I speak of "reasonable doubt" I use those words in the ordinary natural meaning and not as a legal term having some sort of special significance or connotation. A reasonable doubt is an honest and fair doubt based upon reason and common sense. It is a real doubt, not an imaginary or frivolous doubt which might be conceived by a juror in order to avoid his plain duty. Proof beyond a reasonable doubt has been achieved when you feel sure of the guilt of the accused, that is, when the evidence convinces the mind and satisfies the conscience.

[19] Near the end of the charge the trial judge said the following:

Both counsel and I have mentioned to you this concept of proof beyond a reasonable doubt and, as I indicated, that is the standard to which the Crown must prove its case. Proof beyond a reasonable doubt has been achieved when you feel sure of the guilt of the accused, that is, when the evidence convinces the mind and satisfies the conscience. As I indicated to you earlier in my charge, there is not obligation on the accused to prove anything. In order to obtain a conviction the Crown must prove it case with respect to each count in the indictment beyond a reasonable doubt.

[20] The appellant submits that there are several deficiencies in these instructions:

i) the jury was not told that a reasonable doubt can be connected to the absence of evidence;

ii) the jury was not told that if they were only satisfied that the appellant was probably guilty they should acquit;

iii) the jury was not told that reasonable doubt has a special meaning in criminal law; and

iv) the jury was not given a proper definition of reasonable doubt before being told that they could convict if they were sure or if they were satisfied that the accused was guilty.

[21] In reviewing a pre-Lifchus charge, appellate courts are required to consider "whether there [is] substantial compliance with the principles set out" in Lifchus and, whether the charge, read as a whole, gives "rise to a reasonable likelihood that the jury misapprehended the correct standard of proof".[^5]

[22] While this charge has obvious deficiencies when compared to the Lifchus model, I consider the main concern to be whether there is any likelihood that the jury would have been mislead into concluding that the civil standard of proof would suffice. I conclude there is not. Although this charge does not contain language as clear as that found in R. v. Wells, 2001 CanLII 24130 (ON CA), [2001] O.J. No. 81(C.A.) and R. v. Tavenor, 2001 CanLII 24139 (ON CA), [2001] O.J. No. 207(C.A.) to locate the standard of proof above the civil standard, it is distinguishable from the decisions of this court in R. v. Taylor, 2001 CanLII 24190 (ON CA), [2001] O.J. No. 330 (C.A.), R. v. Thompson, 2001 CanLII 24187 (ON CA), [2001] O.J. No. 661 (C.A.) and R. v. L.(F.L.) [2001] O.J. No. 739 (C.A.) in that it does contain some such language.

[23] For example, being reminded that the evidence must 'convince the mind and satisfy the conscience' would have assisted the jury in appreciating that more is required than a mere probability of guilt. Though there are separate problems with these words in the sense that they may be viewed as "morally expressive language" that "might misdirect a jury away from an objective standard of proof"[^6], they do assist in conveying the notion that the standard of proof is higher than probability. In this case, it is my view that any concern that the standard of proof was not sufficiently explained is more than adequately allayed by the fact that, faced with a strong case favouring the Crown and issues dependant on credibility, the jury acquitted the accused of several of the charges contained in the indictment. If the jury had applied an improperly low standard of proof, it would have convicted on all charges. In the end, I see no basis for concluding there is any likelihood the jury misapprehended the correct standard of proof.

[24] For the reasons given, I would dismiss the appeal.

Released: May 24, 2001 "JWM" "J. Simmons J.A."

"I agree: J.W. Morden J.A."

"I agree S.T. Goudge J.A."

[^1]: The appellant pleaded guilty to two counts of assault causing bodily harm and to one count of common assault. He pleaded not guilty to one count of assault causing bodily harm, but guilty to the included offence of common assault. He was ultimately found not guilty of the charge of assault causing bodily harm to which he pleaded not guilty.

[^2]: Counsel for the appellant, in oral argument, abandoned the ground arising from Crown counsel's reference to case law in his closing address.

[^3]: R. v. Nadeau (1985) 1984 CanLII 28 (SCC), 15 C.C.C. (3d) 499 (S.C.C.); R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.)

[^4]: R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)

[^5]: R. v. Avetysan, 2000 SCC 56, [2000] S.C.J. No. 57 at paragraphs 11 and 12

[^6]: R. v. Russell, 2000 SCC 55, [2000] S.C.J. No 56 at paragraph 13