DATE: 2003-11-24

DOCKET: C38943

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – KARL VANIDERSTINE (Appellant)

BEFORE: WEILER, ABELLA and SIMMONS JJ.A.

COUNSEL: Paul Slocombe for the appellant Alex Smith for the respondent

HEARD: November 20, 2003

On appeal from the conviction entered by Justice Keith A. Hoilett of the Superior Court of Justice, sitting with a jury, dated May 3, 2002.

E N D O R S E M E N T

[1] Following a trial by judge and jury, the appellant was found guilty of sexual assault and assault arising out of the same sequence of events on August 25, 2001, and not guilty of assault relating to an incident the previous day on August 24, 2001. He appeals his conviction only as the sentence appeal is moot.

[2] The four grounds of appeal all relate to the trial judge’s charge to the jury. The appellant alleges the trial judge erred in his charge with respect to reasonable doubt, the definition of assault, failed to adequately relate the theory of the defence to the jury and failed to give a limiting instruction with respect to the complainant’s prior consistent statement.

[1] We did not call upon the Crown to respond to the alleged errors in the charge with respect to reasonable doubt and the definition of assault. In our opinion, the charge substantially complied with R. v. Lifchus (1997), 118 C.C.C. (3d) 1, and the jury would not have been under any misapprehension as to the burden of proof. The definition of assault adequately stated the law. These two grounds of appeal are dismissed.

[2] With respect to the other two grounds of appeal, we would observe that the trial judge’s charge must be looked at in context. This was a short trial and there was a single issue. The appellant did not testify.

[3] Although the appellant submits that the trial judge failed to put the main points of the defence to the jury, the trial judge did tell the jury the defence relied on inconsistencies in the complainant’s testimony, her lack of memory with respect to some of the details of the date in question, the absence of ripped clothing, possible motive for fabrication and that the only evidence relating to how the complainant suffered her injuries was evidence given by her. Although the defence complained that the trial judge did not put to the jury that the complainant’s memory may have been affected by a combination of alcohol consumption and the prescription medication she was on, the trial judge correctly noted that there was no evidence that the combination of alcohol the complainant admitted consuming combined with the prescription medication could have affected her memory. The trial judge’s charge adequately put the position of the defence to the jury.

[4] With respect to the failure to provide a limiting instruction to the jury in connection with the complainant’s prior consistent statement, it is important to note that defence counsel himself relied on the contents of the statement and what it did not contain as a central part of his defence. As this court said in R. v. Demetrius, [2003] O.J. No. 2728 (O.C.A.) it will not always be necessary to provide such an instruction where the defence relies on the statement. Moreover, the Crown made it clear in its submissions to the jury that it was not relying on the prior consistent statement as proof of the underlying facts. Accordingly we would not give effect to this ground of appeal.

[5] The appellant’s appeal as to conviction is dismissed.

“K. M. Weiler J.A.”

“R. S. Abella J.A.”

“Janet Simmons J.A.”