DATE: 20031219
DOCKET: C39292
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Appellant) – and – R.M. (Respondent)
BEFORE: WEILER, ROSENBERG and BORINS JJ.A.
COUNSEL: Kim Crosbie for the appellant
R.M. the respondent in person
HEARD: December 12, 2003
RELEASED ORALLY: December 12, 2003
On appeal from the acquittal entered by Justice Gloria R. Klowak of the Superior Court of Justice, sitting with a jury, dated November 25, 2002.
E N D O R S E M E N T
[1] This is a Crown appeal against an acquittal. The respondent, R.M., was charged with sexual assault and tried by judge and jury. The charges arose out of several incidents in which the respondent was said to have sexually assaulted his common-law spouse. R.M. represented himself at trial.
[2] The complainant met R.M. when she was 19 and within three months of their relationship, she became pregnant. Within a week of knowing she was pregnant, she alleged R.M. began to hurt her when they had sex. Specifically, the complainant testified that R.M. would choke her, strangle her and pull her hair during sex. She made it clear to him that she wanted him to stop doing this to her but he never did.
[1] The complainant said she left R.M. three times because of his abusive behaviour. The last time she left, R.M.’s mother, G.M., confronted the complainant. The complainant reported this confrontation to the police, which led to further inquiries, and finally to charges being laid against the respondent.
[2] At trial, R.M. did not cross-examine the complainant and did not testify. He did not call any evidence in his defence.
[3] During the pre-charge discussion, the trial judge stated that there was no evidence about where the incidents were alleged to have occurred. The trial Crown admitted to the “oversight”. R.M. would not concede the issue of jurisdiction of the alleged offences.
[4] The trial Crown then applied to re-open the case. The Crown wanted to re-call the complainant, who was available to testify, to ask her where the alleged incidents occurred. R.M. made no submissions.
[5] The trial judge denied the Crown’s application to re-open the case. She withdrew the case from the jury and entered a verdict of acquittal.
[6] In the circumstances of this case, the actual place of the offence was not an essential element of the offence. The only issue was whether the court had territorial jurisdiction. Notwithstanding the view of Crown counsel at trial (not Ms. Crosbie) and the trial judge there was circumstantial evidence that the offence took place in Ontario. At p. 29 of the transcript of her evidence, the complainant said that she came to Ontario when she was 17. At p. 30 the complainant stated that she worked for the respondent in Barrie and started a relationship with him around that time when she was 19. At p. 39 she said that following the sexual incident she went to the hospital. Again at p. 29 she said she went to Huronia District Hospital on July 4, 2000, and afterwards that she packed her belongings that were in the garage of their home. There was therefore no real need to re-open the case for the Crown to present evidence of where the incident had taken place.
[7] Assuming it were necessary to re-open the case, this case falls within the non‑controversial exception recognized by Cory J. in R. v. G (S.G.) (1997), 116 C.C.C. (3d) 193 (S.C.C.) at pp. 208-209 in that the respondent would not have been prejudiced through the admission of the proffered evidence. The trial judge was concerned that this unrepresented accused would suffer prejudice if the Crown were allowed to re‑open the proceedings. In light of the proceedings to that point, and the circumstantial evidence as to the place of the offence that was already in the record, there was no prejudice.
[8] The Crown has also met its burden of showing that, absent the error in this case, the verdict would not necessarily have been the same.
[9] Accordingly, we would allow the appeal, set aside the acquittal and direct a new trial.
“Karen M. Weiler J.A.”
“M. Rosenberg J.A.”
“S. Borins J.A.”