DATE: 20020514
DOCKET: C33306 C33293
COURT OF APPEAL FOR ONTARIO
CARTHY, DOHERTY and LASKIN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
JOHN GEORGOPOULOS and MANO FAKALIS
Appellants
Howard Borenstein for the appellant Georgopoulos
John Collins for the appellant Fakalis
David Finley for the respondent
Heard: February 7 and 8, 2002
On appeal from convictions by Justice J. Belobradic dated October 6, 1999 and sentences imposed December 15, 1999.
BY THE COURT:
[1] After a trial before Belobradic J., the appellant John Georgopoulos was convicted of sexually assaulting B.H. and the appellant Mano Fakalis was convicted of sexually assaulting both B.H. and S.H. Each appellant was sentenced to 18 months imprisonment followed by 12 months probation. The appellants appeal both their convictions and their sentences. The Crown appeals the sentences.
[2] The appellants raised numerous grounds of appeal against their convictions. Because we have concluded that the convictions cannot stand, we need address only three of these grounds. They are:
the trial judge misapprehended the evidence of drinking;
the trial judge misapprehended the effect of a letter written by the complainant S.H. to a girlfriend; and
the verdicts are unreasonable.
[3] Before dealing with these three grounds of appeal we will briefly summarize the background facts. The incident giving rise to the convictions took place on October 19, 1997. At the time each appellant was 19-years-old and each complainant was 15-years-old.
[4] The Crown’s case was that the appellants lured the two complainants and two of their friends first to Fakalis’ house and then to Georopoulos’ house. There, the appellants plied the complainants with alcohol until they were unconscious or unable to defend themselves. Fakalis then took B.H. to an upstairs bedroom and forcibly sexually assaulted her. Later that evening, Fakalis sexually assaulted S.H. and Georgopoulos sexually assaulted B.H.
[5] Each appellant testified and denied committing any sexual assault. Both appellants admitted that sexual intercourse took place. Indeed, Georopoulos testified that he had intercourse with both complainants though he was only charged with sexually assaulting B.H. But the appellants contended that the complainants not only consented to sexual intercourse but encouraged it. The appellants claimed that neither complainant was drunk and that each complainant knew what she was doing when engaging in the acts in question.
[6] Thus the central issue at trial was whether the Crown had proved beyond a reasonable doubt that the complainants did not consent to sexual intercourse. The trial judge concluded that the Crown had proven its case and therefore convicted the appellants. We turn now to the grounds of appeal.
1. The trial judge misapprehended the evidence of drinking
[7] At trial, Crown counsel described the complainants’ evidence as “unnatural, difficult to believe, improbable”. The trial judge, too, observed that the complainants’ testimony was “bizarre, confusing and contradictory”. For example, an important contradiction in the evidence of the complainants concerned who was present when the alleged sexual assaults occurred. B.H. testified that when Georgopoulos assaulted her, S.H. was in the bed at the same time being assaulted by Fakalis. S.H., on the other hand, testified that when she was sexually assaulted, neither B.H. nor Georgopoulos was in the bed.
[8] Nonetheless, in assessing the complainants’ credibility and in ultimately accepting their evidence the trial judge concluded that these problems with their evidence were due to so-called bolus drinking, that is, the consumption of large amounts of alcohol in a short period of time. In the trial judge’s words:
The consumption of alcohol in this fashion, referred to in the evidence of a toxicologist as “bolus drinking”, had a profound effect on the girls.
… the bizarre, confusing and contradictory evidence given by the complainants is due to bolus drinking. This affected their judgment, perception and memory of certain details. In the circumstances however I find that the discrepancies, though important, do not create a reasonable doubt on the element of absence of consent.
[9] The appellants submit that the trial judge misapprehended the evidence of drinking at least in relation to the complainant S.H., if not both complainants. They submit that S.H., even on her own evidence, did not engage in bolus drinking and was not drunk. Instead, she had less than two drinks and knew what she was doing when the sexual activity took place. We agree with this submission. To put it in context we will briefly review the evidence of drinking.
[10] On the day in question, Sunday, the appellants picked up the complainants and two of their girlfriends. They all drove to Fakalis’ home where everyone had one rum and coke. S.H. testified that she had only a sip of her drink. After half an hour everyone went to Georgopoulos’ home. There B.H. said that she had three or four more rum and cokes over 45 minutes and felt really drunk, sick and woozy. No one else there saw her show any signs of impairment and she was apparently seen dancing after the sexual intercourse occurred. More important for this appeal, S.H. had only one drink, also a rum and coke, at Georgopoulos’ house, which she didn’t finish. Thus, even if the trial judge could reasonably conclude that B.H. was bolus drinking, he could not reasonably reach the same conclusion for S.H. She had less than two drinks and the Crown led no evidence about the amount of alcohol in each drink. The evidence at trial, therefore, did not demonstrate that S.H. was impaired by alcohol when she had sexual intercourse with the appellants.
[11] Although the trial judge’s misapprehension of the evidence relates primarily to S.H., he assessed the credibility of the complainants together. Thus, we do not think it appropriate to isolate his error by leaving undisturbed his finding on the credibility of B.H. and the corresponding conviction of the appellant Georgopoulos. In our view, his misapprehension of the evidence of S.H.’s drinking undermines the convictions of both appellants. For this reason alone we would set aside the convictions. But the trial judge made a second error that also undermines the convictions.
2. The trial judge misapprehended the effect of S.H.’s letter
[12] Either the night of the incident or soon after, S.H. wrote a letter to her girlfriend C.G. who had also been with the complainants and the appellants that evening. The trial judge considered the letter “a very important piece of evidence”. In his view, it showed that S.H.’s “subjective state of mind at the time of the intercourse was entirely one of no consent”. The relevant part of the letter reads as follows:
I couldn’t sleep so I decided to write you a note. You don’t understand how I feel right now. I’m the biggest slut in the world. I hate myself and I want to die. How could I do something like that? I like Johnny so much and when I realized that he was fucking Beth and I was fucking Mano I just about died.
[13] In our view, the trial judge misapprehended the effect of the letter when he concluded that it showed S.H. had not consented to sexual intercourse. We think that the tone of the letter suggests consensual activity, which S.H. came to regret very quickly. At its highest for the Crown, the contents of the letter are neutral. They should not have been relied upon to find a lack of consent.
[14] The errors made by the trial judge concerning the evidence of drinking and the effect of S.H.’s letter tainted his analysis. For that reason the appellants’ convictions cannot stand. See R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.). The appellants are at least entitled to a new trial. The remaining question is whether they are entitled to acquittals because the verdicts are unreasonable.
3. Are the verdicts unreasonable?
[15] We have reviewed the evidence in this case in the light of the Supreme Court of Canada’s direction in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. Although the complainants’ evidence at times appears – as both the trial judge and the trial Crown observed – bizarre and confusing, we think a trier of fact acting reasonably and properly instructed could nonetheless convict each appellant. We are therefore not persuaded that the verdicts are unreasonable.
[16] Accordingly, we allow the appeals, set aside the convictions, and order a new trial for each appellant.
“J.C. Carthy J.A.”
“Doherty J.A.”
“John Laskin J.A.”
Released: May 14, 2002