W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20040726

DOCKET: C40301

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – SAMUEL CRAMPTON (Appellant)

BEFORE:

WEILER, SHARPE AND SIMMONS JJ.A.

COUNSEL:

Mark Ertel

for the appellant

Lorna Bolton

for the respondent

HEARD:

July 16, 2004

On appeal from the conviction by Justice Gordon Sedgwick of the Superior Court of Justice dated April 29, 2003, and on appeal from the sentence imposed by Justice Sedgwick dated June 25, 2003.

E N D O R S E M E N T

[1] The appellant appeals his conviction for sexual assault and the sentence imposed of nine months imprisonment plus two years probation. The appellant was charged with two counts of sexual assault, allegedly committed on consecutive evenings against the same complainant. Following a trial by judge and jury, the appellant was found not guilty of the charge relating to December 27, 1999, but guilty of the charge relating to December 28, 1999.

[2] At the time of the alleged incidents the appellant was eighteen years old and in his O.A.C. year at high school. The complainant was fifteen years old and in grade ten. The complainant alleged that, on both evenings, the appellant attended at a home where she was babysitting and sexually assaulted her. The appellant testified at trial and claimed that on December 27, 1999 he and the complainant engaged in consensual sexual activity, including oral sex, and that on the following evening, the complainant pushed him off the couch after he asked for intercourse and that no non-consensual sexual activity took place. The appellant relies on alleged errors in relation to the trial judge’s instructions to the jury as the basis for his appeal against conviction.

[3] We accept the appellant’s submission that the cumulative effect of four deficiencies in the trial judge’s instructions to the jury requires that we set aside his conviction for sexual assault on December 28, 1999 and order a new trial.

[4] The first deficiency relates to the trial judge’s instructions concerning the complainant’s evidence about the circumstances in which she disclosed her allegations. The trial judge instructed the jury as follows:

[The complainant] was asked about the circumstances in which she disclosed to others the incidents of December 27th and 28th, 1999, involving [the appellant]. She testified that she told her mother eight or nine days later, reported these incidents to the police in January 2000, but declined to lay charges at that time, and eventually laid charges early in 2001. According to her testimony, her hesitation was the result of fear of the resultant court proceedings and stress on her family.

As a matter of law, it cannot be said that a complainant who is wronged will always complain at the first opportunity. Delays in disclosure must not be used to support an adverse inference against the complainant’s credibility or an inference that she is more likely to have consented

[5] We agree with the Crown’s submission that the foregoing instruction was appropriate in light of R. v. D.D. (2000), 2000 SCC 43, 148 C.C.C. (3d) 41, in which the Supreme Court of Canada stated that “[a] delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant”, although it would have been preferable had the trial judge phrased his caution to the jury in the same terms as the Supreme Court of Canada i.e., delays in disclosure standing alone do not support any form of adverse inference. The more important point in the context of this case is that the trial judge should have addressed the defence theory that the complainant fabricated her allegations after her boyfriend learned that the appellant had been at the home where the complainant was babysitting on December 27 and 28, 1999.

[6] We do not accept the Crown’s submission that it was unnecessary for the trial judge to refer to the defence position concerning fabrication in his jury charge, since defence counsel had fully canvassed the defence theory in his closing address. Although it is unnecessary that a trial judge comprehensively review the evidence in his charge, it is important that the trial judge alert the jury to the main components of each party’s position. In this case, the allegation of fabrication went hand-in-hand with the defence theory of consent and the trial judge should have pointed it out to the jury specifically. More significantly however, having instructed the jury that delayed disclosure does not create an adverse inference, it was necessary that the trial judge confirm that, in the circumstances of this case, the jury was nevertheless required to consider whether the delay in disclosure was the result of fabrication after the complainant had spoken to her boyfriend.

[7] The second deficiency relates to the trial judge’s summary of the evidence. The appellant submits that, when summarizing the evidence for the benefit of the jury, the trial judge misstated it in two key areas: i) the trial judge told the jury that the appellant asked for intercourse on the first night (December 27th, 1999), whereas, the appellant testified that he asked for intercourse on the second night (December 28, 1999); and ii) the trial judge advised the jury that the complainant kicked the appellant off the couch on the first night, whereas, the appellant testified that happened on the second night in response to the appellant’s request for intercourse and the net effect of the complainant’s evidence was that she was uncertain on which night that had occurred.

[8] We agree that the trial judge misstated the evidence. We also agree that the misstatement may have been significant, particularly in light of the jury’s acquittal on the charge relating to the first night (December 27, 1999). The jury may have been disinclined to accept the defence of consent in relation to the second evening (December 28,1999) if they thought that the complainant had kicked the appellant off the couch on the first evening (December 27, 1999). Although the trial judge gave the jury the standard cautions concerning relying on their recollection of the evidence, in light of the differing verdicts that were delivered in this case, we are unable to exclude the reasonable possibility that the trial judge’s error may have affected the verdict.

[9] The third deficiency relates to the trial judge’s instructions concerning consent to sexual activity. The trial judge’s instructions included the following:

Consent is the real issue in this case.

Only [the complainant’s] actual state of mind matters. Consent has nothing to do with [the appellant’s] state of mind, or, for that matter, with anybody else’s state of mind.

There is also no consent if someone induces you to participate in sexual activity by abusing a position of trust, power or authority.

Apart from the difference in their ages, I do not think that is a factor in this case. [emphasis added]

[10] On a plain reading of the emphasized portion of the foregoing instruction, we accept the appellant’s submission that it may have left the jury with the erroneous impression that, even if the complainant consented to sexual activity, her consent may have been invalidated because of the difference in age between the appellant and the respondent. Given that the Crown’s position was that the complainant did not consent to sexual activity, we agree that it is unlikely that this error affected the verdict. Nevertheless, in light of the appellant’s position at trial, we are unable to exclude that possibility completely.

[11] The fourth deficiency relates to the trial judge’s instructions in response to the following question from the jury: “[w]hat are the major elements outlined by the Judge concerning sexual assault?” Over the objections of Crown counsel at trial, the trial judge responded as follows:

…the essential elements of the criminal offence of sexual assault in this case are: first: that [the appellant] intentionally, that is, in the sense of on purpose and not accidentally, applied force to [the complainant]; two: that she did not consent to the force that he intentionally applied; three: that he knew that she did not consent to the force that he intentionally applied, knew in the sense of actually knowing or not actually knowing but being reckless about knowing, or wilful blindness, which means closing your eyes to the obvious; and four: that he intentionally applied force to her in circumstances of a sexual nature.

[12] The difficulty with this instruction was that, although the trial judge had previously instructed the jury in terms that explained the concepts of recklessness and wilful blindness, he had not previously used those specific words. The trial judge should not have introduced terms of art as part of a re-charge, without setting out their specific definition, or, in the case of wilful blindness, without setting out a complete definition. Although we agree with the Crown’s submission on appeal, that it is unlikely that this jury would have acted on the undefined terms without asking additional questions, once again, we are unable to exclude that possibility completely.

[13] As already noted, in our view, the cumulative effect of these four deficiencies in the trial judge’s instructions to the jury requires that we set aside the appellant’s conviction and order a new trial. We reach this conclusion even though the only objections raised by defence counsel at trial related to factual matters and did not include the second misstatement of the evidence to which we have referred. The first two deficiencies we have noted are serious errors, which are in no way neutralized by defence counsel’s failure to object.

[14] This is not an appropriate case in which to apply the curative proviso. As indicated, we reject the Crown’s submissions that the errors respecting the trial judge’s charge, viewed in context, are minor and are offset by other errors at trial, which inured to the benefit of the appellant. Nor do we accept the Crown’s submission that its case at trial was overwhelming. The issues in the case related to credibility. We are not satisfied that the Jury’s verdict would necessarily have been the same.

[15] Based on the foregoing reasons, the appellant’s conviction is set aside and a new trial is ordered on the charge of sexual assault alleged to have occurred on December 28, 1999.

“Karen M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”```