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. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) 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
(c) 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,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
DATE: 20050629
DOCKET: C41003
COURT OF APPEAL FOR ONTARIO
WEILER, BORINS and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Leo Adler for the appellant
(Respondent)
- and -
ROOPNARINE PITTIMAN
Thomas D. Galligan for the respondent
(Appellant)
Heard: March 30 and 31, 2005
On appeal from the conviction entered on July 6, 2003, and the sentence imposed on December 8, 2003, by Justice Silja S. Seppi of the Superior Court of Justice, sitting with a jury.
WEILER J.A.:
[1] The appellant, Roopnarine Pittiman, was convicted of sexually assaulting the fourteen-year-old complainant, A.F. The appellant’s co-accused, Ryan Pittiman and Beswick Goffe, were acquitted of sexually assaulting her. The appellant argues that the verdicts are inconsistent and that, as a result, his conviction was unreasonable. Ancillary grounds of appeal concern an alleged conversation about A.F.’s prior sexual activity, the admissibility of a post-offence statement, and alleged errors in the judge’s charge to the jury.
[2] The appellant also seeks leave to appeal his sentence, and, if leave is granted, appeals his sentence of three years incarceration, less credit for 126 days time served. The issues on the sentence appeal are whether the trial judge erred in adopting the view of what took place that she did, whether she speculated about the jury’s reasoning, and whether the sentence was excessive and unduly harsh in all of the circumstances.
FACTS
[3] On May 27, 2000, A.F. visited her aunt. She took several walks, including a walk to a Becker’s to buy candy sometime before 7 p.m. On her way, she met Roopnarine, his brother Ryan, their friend Goffe, and Maheshwar Inderjeet outside the Pittiman residence. They gave her false names. She allegedly told them she was sixteen although she was only fourteen. They engaged her in further conversation and a discussion ensued about her soccer games and singing. The men offered her a beer. She initially refused, but then accepted it and drank part of a bottle of beer. The appellant alleges that A.F. told them about her previous boyfriends and sexual activity, including group sex and having sexual intercourse in exchange for Fubu sneakers and a pager.
[4] The men invited A.F. into the basement of the Pittiman home. She went willingly. The complainant’s version of events was that while she was sitting on the sofa, Goffe began to do “squiggles” on her back. Roopnarine began to tickle her and she laughed. Ryan then asked her to go into the bathroom with him and to exchange “a favour for a favour”. She knew that this meant performing mutual oral sex and refused. Roopnarine sat on one side of her, Ryan, on the other. They began to touch her everywhere on top of her clothes. Roopnarine tried a few times to undo her belt, but A.F. did it back up again. Roopnarine removed her belt, slid his hand inside her pants, and touched her vagina. A.F. consistently said no and that she had to leave.
[5] Roopnarine and Ryan led A.F. into a bedroom. They put her on the bed and took her clothes off. Roopnarine asked her if she “wanted it hard or soft”. She said she did not want it at all. Ryan held her wrists, Roopnarine climbed on top of her, and he had vaginal sex with her. Ryan attempted to put his penis in her mouth but she turned her head. Roopnarine left the room and Ryan did something to her, although A.F. could not remember what. When he was finished, she said Goffe entered the room, had vaginal sex with her, and caused her the most pain.
[6] The extent of Inderjeet’s participation is not clear. At one point, A.F. alleges that all four men were touching her. Inderjeet denies this.
[7] Inderjeet testified that he did not go into the bedroom with A.F. and the others. When he later entered the bedroom, A.F. was on the bed, Roopnarine was on one side in his basketball shorts, and Ryan on the other, also in his basketball shorts. Inderjeet said Goffe was standing off to the side in a corner and was fully clothed. Inderjeet said he threw A.F.’s clothes to her.
[8] A.F. dressed and got up to leave. Roopnarine gave her a piece of paper with his phone number on it, telling her to call him if she needed drugs or a place to stay. Inderjeet said he walked her to her aunt’s home at 10 p.m. A.F. agreed with the time but said that she walked home alone.
[9] A.F. told her aunt that four men had raped her. The family called the police, who took A.F. to look for the men and, once they found the men, took her to the hospital. There is conflicting evidence about whether or not A.F. was dishevelled or in a state of shock. Although the medical professionals fully examined A.F., there was no evidence of injury to her genitals or to her limbs. There was also no evidence of foreign material on A.F.’s body, with the exception of one spermatozoa in her rectum and Roopnarine’s saliva, which was found mixed with A.F.’s saliva, on the inside of A.F.’s bra.
[10] Inderjeet, the main witness supporting A.F.’s allegation, lied in the first three statements that he gave to police, stating that he was not at the scene. Later, Inderjeet gave a statement admitting his presence and supporting A.F.’s version of events.
[11] After Inderjeet admitted his presence, Roopnarine, who had been released on bail pending his trial, spoke to Inderjeet in the driveway of his home, in front of two witnesses, and accused Inderjeet of “ratting him out”.
[12] The jury convicted Roopnarine and acquitted his brother Ryan and Goffe.
ANALYSIS
The Appeal from Conviction
1. Was the verdict unreasonable?
[13] Whether a verdict is unreasonable is a question of mixed fact and law: R. v. Koury, [1964] S.C.R. 212 at 220. Verdicts can be inconsistent without being unreasonably so. An appellate court will look beyond the face of the indictment and the result and will consider the record, the judge’s charge, and the objections of defence counsel to the charge: Koury, supra.
[14] An appellate court’s function in reviewing a verdict for unreasonableness is to decide whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Francois, [1994] 2 S.C.R. 827 at 835-36.
[15] Review for unreasonableness may involve consideration of the basis for a witness’s conclusion, the significance of any inconsistencies in testimony, or an assessment of motives for concoction. The privileged position of the jury in assessing the witness’s demeanor must be borne in mind. An appellate court must also keep in mind that the jury is entitled to accept all, part, or none of a witness’s evidence. Particularly with respect to sexual offences, a jury may bring special qualities that appellate courts may not share to the difficult business of determining where the truth lies: Francois, supra. The jury is not obliged to view the evidence in the same manner as the Crown or the defence, both of whom often advance theories that are not adopted by the jury: R. v. McLaughlin (1974), 2 O.R. (2d) 514 (C.A.) at 519-20.
[16] In the case of one accused charged with multiple counts, the evidence with respect to one count may be so wound up with the evidence on the others as to be logically inseparable, on any realistic view of the evidence, and an appellate court may not be able to discern a rational basis for the verdict: R. v. Tillekaratna (1998), 108 O.A.C. 281. In that situation, the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise: R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.).
[17] Conversely, where several accused are jointly charged with the same single offence, it is not possible to characterize inconsistent verdicts against co-accused as unreasonable unless the evidence against both is identical: R. v. Wile (1990), 74 O.R. (2d) 289 (C.A.) at 317 citing R. v. McNamara (1973), 2 N.R. 386 (B.C.C.A.) at 387, aff’d [1974] S.C.R. vi and Eugene G. Ewaschuk, Criminal Pleadings and Practice in Canada, 2d ed. (Aurora: Canada Law Book, 1987) at para. 16:5460. Decisions about one accused who has been charged with multiple counts in the same indictment but convicted of only one count are of little assistance in this situation: Wile, supra. The fact that one accused was convicted while other co-accused were acquitted on similar evidence does not mean that the person convicted is entitled to an acquittal: McNamara, supra, at paras. 19-21; R. v. Bergeron (1998), 132 C.C.C. (3d) 45 (Que. C.A.) at 70. In cases involving multiple co-accused charged with the same count, the Crown’s case may be significantly stronger against one accused than another, the evidence may indicate that one accused played a more dominant role, or, in cases where the accused testify, the jury may assess the demeanor of one accused differently, any of which would provide a basis on which to distinguish the culpability of the accused: R. v. Ahmad (2000), 146 C.C.C. (3d) 506 (Ont. C.A.).
Application of General Principles
[18] In this case we are dealing with multiple accused charged with one count of sexual assault. The appellant makes three submissions in support of his argument that the verdicts are unreasonably inconsistent.
[19] The appellant’s first submission is that the Crown presented the case as an all-or-nothing case. This submission does not assist the appellant. As the decision in McLaughlin, supra, indicates, the jury is not obliged to adopt the Crown or the defence’s view of the evidence. In addition, the jury is entitled to accept all, part, or none of the evidence of any witness. Furthermore, counsel did not ask Seppi J. to instruct the jury that it could not acquit one accused and not the others, nor was any objection made on this basis after the charge.
[20] The appellant’s second submission is that the evidence of the complainant and of Inderjeet equally implicated all of the accused. The appellant’s submission adopts a limited view of the evidence and does not take into consideration the entire record in this case. There are two additional pieces of evidence respecting the appellant that do not apply to the other co-accused.
[21] The first piece of evidence derives its significance from the fact that at trial none of the accused admitted having sexual contact with the complainant. Forensic DNA evidence indicated, however, that the appellant’s saliva, mixed with the complainant’s saliva, was found on the inside of her bra. This would be consistent with the appellant kissing the complainant with his tongue in her mouth and then kissing her breast. The appellant’s saliva objectively indicates that he had sexual contact with the complainant.
[22] The second piece of evidence is the appellant’s post-offence conduct and his statement accusing Inderjeet of “ratting him out” to the police. If this comment was admissible, as I will hold later, it was open to the jury to construe the comment as an admission by the appellant. Just as McLaughlin’s statement to the police in McLaughlin, supra, implicated him and provided a basis on which his conviction could be upheld despite his acquittals on the other counts, the Crown’s case against the appellant was, therefore, stronger than that against the co-accused in this case.
[23] The appellant’s third submission is related to his second. It is that the evidence of the complainant and of Inderjeet is so interwoven respecting the three co-accused as to be logically inseparable. This is an argument arising from Tillekaratna and from McLaughlin, which, as I have indicated above, is a case involving one accused charged with multiple counts arising out of the same incident.
[24] In Tillekaratna, the court was faced with an accused charged with five counts of sexual assault and one count of threatening death. The jury convicted the accused only on the fifth count of sexual assault. The court held that the evidence in relation to the fifth count was not significantly stronger than that in relation to the other incidents and set aside the verdict.
[25] In McLaughlin, three accused were jointly charged in one indictment with three counts of conspiracy to commit robbery, possession of a pistol knowing it to be stolen, and possession of a pistol for a purpose dangerous to the public peace. The co-accused were convicted on all three counts. McLaughlin was found guilty only of possession of a pistol for a purpose dangerous to the public peace and appealed his conviction on the basis that the verdict was unreasonable. Upon his arrest, McLaughlin told the police that when he got home from work one of the co-accused, Jerry, had called him and asked him if he wanted to make $50 because they needed his “wheels”. McLaughlin agreed and, when he met Jerry, he saw that the other co-accused, Fred, had a gun in a bag. They told him that they were going to Broadway to do “a rip-off” and wanted him to wait outside and keep the car running. As they left, the police came and they were caught.
[26] McLaughlin’s statement alone, if accepted by the jury, was sufficient to entitle them to conclude that the gun, which was in his car with his knowledge and consent, constituted possession in law. Once they found possession, the circumstances made it manifest that its possession was for a purpose dangerous to the public peace. The court held that the essential ingredients of the possession and conspiracy charges, although related, were not identical and the verdict of guilty on the possession charge was sustained.
[27] The issue on the appeal in McLaughlin did not relate to inconsistent verdicts between co-accused but rather to inconsistent verdicts on the counts with which one accused was charged. It was in this context that Evans J.A. held at 519, “If the verdicts are violently at odds and the same basic ingredients are common to both charges then the conviction will be quashed”. Tillekaratna is to the same effect.
[28] As I have already explained, this court held in Wile, supra, that cases dealing with one accused are of little assistance. Rather, the Wile, McNamara, and Bergeron line of cases governs.
[29] The fact that the Crown, defence and the judge all considered the case to be an all or nothing case was not binding on the jury. As I have indicated, the jury is not obliged to accept the trial judge’s view of the evidence nor, obviously, that of counsel for the accused or the defence.
[30] In a multi-count indictment such as this the trier of fact must give separate consideration to his or her verdict on each count. In addition, the trier of fact is entitled to accept parts of a witness’s evidence and reject other parts. Here, although the appellant denied any sexual contact with the complainant in his statement to the police, the presence of his saliva on the inside of her bra is independent confirmatory evidence that he had such contact. There is no independent confirmatory evidence respecting the other two co-accused. The appellant’s post offence comments to Inderjeet, when considered together with the presence of his saliva on the inside of her bra, separated him from the other co-accused and made the case against him stronger. The greater strength of the case against the appellant provides a rational basis on which the jury could come to the conclusion that the appellant should be convicted and the co-accused acquitted on the charge of sexual assault.
2. Was the appellant improperly precluded from cross-examining the complainant on her prior sexual history?
[31] The complainant testified that she was a virgin prior to the alleged sexual assault. The defence sought to cross-examine her on this statement and alleges that his cross-examination was improperly curtailed.
[32] Section 276(1) of the Criminal Code excludes evidence of the complainant’s sexual activity that would be introduced for the purpose of showing that the complainant is more likely to have consented to the sexual act with which the accused is charged or that the complainant is less worthy of belief. Section 276(2) contains an exception to the prohibition. It allows the admission of evidence of a specific instance of sexual activity, relevant to an issue at trial, whose probative value is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[33] Section 276 of the Code does not prohibit the complainant from testifying that she is a virgin. The section only refers to complainants who have engaged in prior sexual activity and specific instances of sexual activity. Evidence of a complainant’s virginity is a question of physical fact. That evidence cannot, however, be used by the trier as evidence of sexual reputation to bolster or challenge the complainant’s credibility; such a use is prohibited by s. 277: R. v. Brothers (1995), 1995 ABCA 185, 169 A.R. 122 (C.A.).
[34] The defence submits that he was entitled to cross-examine the complainant on her statement that she was a virgin and submits that s. 276 does not apply in these circumstances. The Crown argues that the defence must still follow the procedure prescribed in s. 276 before adducing evidence of the complainant’s sexual conduct. This procedure was not followed.
[35] The trial judge allowed the appellant to cross-examine the complainant about her physical state of virginity. He asked few questions in this regard. In response to a question by defence counsel at trial, the trial judge told the appellant he could cross-examine the complainant about the sperm in the anal wash, but he did not do so.
[36] The Crown submits that the purpose of the defence cross-examination was to show that the complainant was a person who was more likely to have consented to having sex with the men and that, quite apart from ss. 276 and 277, the cross-examination violated the common law rule against collateral facts. The rule is that one cannot impugn a witness’s credibility by contradicting the witness on collateral matters even in a case where the core issue is credibility. The rule is subject to the general discretion of a trial judge to exclude evidence where its probative value is outweighed by its prejudicial effect: R. v. B. (A.R.) (1998), 41 O.R. (3d) 361 at 365-66.
[37] When a complainant testifies that she was a virgin, it may be too late to follow the procedure specified in s. 276 by giving seven days notice before adducing the evidence. That does not mean, however, that the spirit and intention of the section has no application or that the collateral fact rule does not apply. In any event, the appellant did engage in a cross-examination broadly designed to show that the complainant was not a virgin and then used her alleged sexual history and reputation to attack her credibility. The complainant was asked the names of her “boyfriends”. She was asked whether she had gotten her Fubu sneakers and pager by “playing guys”. She denied playing guys but admitted that she had Fubu sneakers and a pager. She denied lying to the men about her age. Inderjeet testified that the complainant told the men that the complainant said she had “done five guys at one time before”. The defence put this to the complainant and she denied making the statement.
[38] Despite the judge’s ruling, the defence essentially asked the questions it wanted to in cross-examination. I would not give effect to this ground of appeal.
3. Did the trial judge erroneously charge the jury that it could not use the alleged prior inconsistent statements to reject the complainant’s credibility about being a virgin and about refusing to consent to any activity that occurred?
[39] As indicated above, Inderjeet testified that the complainant talked about having “done five guys at one time before” and the complainant denied making the statement. The trial judge instructed the jury to decide whether the alleged discussion about sex occurred. She told the jury the complainant also denied telling the accused that she “played guys” to get Fubu sneakers and a pager but she admitted a friend gave her the shoes. The trial judge repeated the question posed by the defence:
Counsel says, ask yourselves, why and how would the accused young men have known about these items unless there had been a conversation such as was suggested to her? He says, is this not very similar to her evidence of doing a favour for a favour?
[40] The trial judge also told the jury that the evidence of the alleged conversations concerning sex had been admitted to complete the narrative of events between the complainant and the accused. She added, “You may use that evidence to help you decide what really happened on May 27th, 2000 in the same way that you consider other evidence in this case”. She then told the jury that it must first decide if the statements were made, and, if the statements were not true, she said the jury need not be concerned about them. If the jury found that the statements were evidence of prior sexual activity, she cautioned that it could not use the statements to support an inference that the complainant was more likely to have consented to sex with the three accused. She also stated, “You must also not use that evidence to support an inference that because of the sexual nature of that alleged past activity, [A.K.] is less believable or reliable as a witness in this case”.
[41] Defence counsel objected to the charge and told the trial judge she should tell the jury that if in fact they found that the complainant lied in denying that she made the statements they could consider her lie in assessing her credibility as with any prior inconsistent statement.
[42] Section 276.4 requires a judge to instruct a jury as to the uses it may and may not make of evidence admitted pursuant to a determination under s. 276.2. Section 277 states that evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.
[43] The evidence of the complainant’s prior sexual activity cannot be used like any prior inconsistent statement. A jury cannot use evidence of prior sexual activity to infer consent. A jury cannot use evidence of sexual reputation to impeach credibility generally. A jury can only use the evidence of the complainant’s sexual activity to rebut her physical status as a virgin which fact was not relevant to an issue in this case.
[44] I would not give effect to this ground of appeal.
4. Did the trial judge err in refusing to put the defence of honest but mistaken belief of consent to the jury and in her treatment of the issue of consent?
[45] During the pre-charge conference, the trial judge said, “I assume that because the defendants or accused people did not testify, honest but mistaken belief is not an issue. I do not have any evidence of that”.
[46] The defence objected and said that inferentially there was evidence, describing that evidence as:
[A] combination of the conversation, for the moment assuming they accept all of the conversation including the group sex, the fact that she bragged about playing guys for her pager and shoes and whatever else, the talk about boyfriends and so on. When you combine that with the lack of any injuries or markings and when you combine that with what I describe as the objective description of her emotional state by the police which I read in by the nurse, I think, at one point it would be clear that to the accused – our position is that she didn’t cry and didn’t say no and if the jury accepts that, then clearly the accused would have had this belief…whether she clearly and forcefully enough made “no” obvious, I think, is also part of it. So I think circumstantially there is sufficient evidence there to place it before the jury as an alternative….Your Honour has an obligation whether we raise it in our submissions or not.
[47] Although the trial judge told the jury that the defence argued alternatively that A.F. consented to the sex that took place, she did not explain the defence of honest but mistaken belief. The appellant submits that the trial judge erred in not doing so and in not reviewing the evidence listed by the defence with the jury.
[48] In order to raise the defence of honest but mistaken belief in consent an accused need not necessarily testify. Support for the defence may arise from any evidence before the court including the Crown’s case in chief and the testimony of the complainant: R v. Robertson, [1987] 1 S.C.R. 918 at 933-36; R. v. Ewanchuk, [1999] 1 S.C.R. 330 at paras. 29-30, 55-58. That said, in the circumstances of this case there was no evidence that the appellant believed that A.F. communicated consent to engage in sex with him because of her prior sexual activity. As stated in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at 478:
To make out the defence, the accused must show that “he believed that the complainant communicated consent to engage in the sexual activity in question” (Ewanchuk, supra, at para. 46 (emphasis in original)). To establish that the complainant’s prior sexual activity is relevant to his mistaken belief during the alleged assault, the accused must provide some evidence of what he believed at the time of the alleged assault.
[49] The evidence of the absence of bruising or other marks that would indicate a struggle is evidence of passivity. The defence was in error in submitting that lack of resistance must be equated with consent and in suggesting that a victim is required to forcefully make “no” obvious: see R. v. M. (M.L.), [1994] 2 S.C.R. 3 at 4. The fact that the appellant gave the complainant a piece of paper with his telephone number on it and asked her to call should she wish to buy drugs or anything else is insufficient to support the defence of honest belief in consent because it does not indicate that A.F. communicated consent. The evidence of the phone number is indicative of the fact that the appellant wished to sell her illegal drugs or, perhaps, alcohol, knowing that she was underage.
[50] Secondly, the only evidence that A.F. communicated consent is contained in the conversation between A.F. and the men in which she allegedly stated that he ad “played” guys to get her FUBU sneakers and her pager. A.F. categorically denied making these statements. Even if the jury accepted the statements as true, there is no evidence that the accused offered A.F. anything in exchange for having sex. Therefore the allegations about “playing” cannot lead to a conclusion of honest but mistaken belief in consent.
[51] Even if the alleged conversation was about having done five guys at one time and nothing more and it was accepted as true, the discussion about past sexual acts does not satisfy the requirement that there be evidence the complainant communicated consent to engage in the particular sexual activity in question and with the particular people in question.
[52] Finally, the defence of honest but mistaken belief in consent was not available to the appellant because there was no evidence that the appellant took any reasonable steps to determine whether the complainant was in fact consenting to the sexual activity that took place as required by s. 273.2(b): see R. v. Daigle, [1998] 1 S.C.R. 1220, aff’g (1997), 1997 9934 (QC CA), 127 C.C.C. (3d) 130 (Que. C.A.).
[53] The defence of honest but mistaken belief in consent was properly not left to the jury.
5. Did the trial judge err in not making adverse reference to the Crown’s failure to call certain witnesses?
[54] The trial judge charged the jury that, “There is no obligation on counsel to call specific witnesses and you are not to draw any adverse inference from the fact that certain witnesses were not called.” The appellant submits that the trial judge’s instruction undercut the position taken by one of the defence counsel that the jury was entitled to take into consideration the fact that the Crown did not call expert evidence regarding the complainant’s purported state of shock. The appellant also submits that the medical professionals who examined the complainant would have contradicted her evidence that she was not examined. They could also have corroborated her evidence that she was in pain and had difficulty walking due to the sexual acts.
[55] Generally, the Crown is under no obligation to call a witness it considers unnecessary to the prosecution’s case. The Crown was not obliged to call the evidence of the medical professionals to corroborate the complainant’s evidence that she was in shock or in pain and had difficulty walking or her evidence about her examination. The Crown had no special access to these potential witnesses. This fact constitutes a basis for not drawing an adverse inference against the Crown for not calling the witness: R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751 at para 27. There was no basis for the appellant’s complaint.
6. Did the trial judge err in allowing certain comments made by Pittiman to be entered as after the fact consciousness of guilt evidence? Did she fail to put the defence position respecting this conduct in her charge to the jury?
[56] At the start of the trial the appellant brought a motion to exclude the evidence of the Appellant’s alleged after-the-fact conduct. Inderjeet, Chad Hobson, and Ranjit Dhillon provided statements about how on June 9, 2000, the appellant confronted Inderjeet at his residence about what he told the police respecting the alleged sexual assault.
[57] The trial judge ruled the evidence admissible. The appellant submits that the trial judge should have excluded evidence about the confrontation between Inderjeet and Roopnarine in which the latter accused Inderjeet of “ratting” on him. The appellant’s position is that this conversation was not probative of anything relevant to the issues or alternatively that its probative value was outweighed by its prejudicial effect.
[58] The appellant also submits that the trial judge erred in her charge to the jury because she did not raise the proximity of the alleged confrontation to the appellant’s bail hearing, thereby not leaving the jury with the innocent explanation that Roopnarine was simply angry at Inderjeet for lying to the police by pointing the finger at him.
[59] The trial judge did not err in admitting the evidence. It had probative value as a piece of circumstantial evidence respecting the appellant’s mental status or understanding of what happened on that evening: see R. v. White, [1998] 2 S.C.R. 72; R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.). The after-the-fact conduct was not ambiguous in the sense that the appellant admitted liability for any other crime or wrongdoing committed that day: see e.g. R. v. Arcangioli, [1994] 1 S.C.R. 129 at 144-45.
[60] Although the trial judge did not mention the proximity of the alleged confrontation to the appellant’s bail hearing in her charge to the jury, she did put the defence explanation to the jury. She stated:
Mr. Roopnarine Pittiman confronted the witness Maheshwar Inderjeet about giving a statement to the police.
What a person says and does after a crime is alleged to have been committed may help you decide whether that person committed it. It may help, it may not. The words and conduct may indicate that Mr. Roopnarine Pittiman committed the crime. On the other hand, the words and conduct may be that of an innocent person who had other reasons to confront Mr. Inderjeet. An explanation that the defence gives for this post-offence conduct, if you find it occurred, is that Mr. Roopnarine Pittiman was angry at Mr. Inderjeet because he believed he made false allegations against him in this statement to the police.
[61] I would dismiss this ground of appeal.
7. Did the trial judge fail to fairly put the theory of the defence to the jury and fail to present a balanced review of the evidence?
[62] The appellant submits that the trial judge did not make a careful and balanced review of the evidence essential to the accused’s defence nor explain the evidence’s significance. Instead, the appellant submits that the trial judge read most of the examination-in-chief of the complainant and Inderjeet and omitted much of their cross-examination. The appellant alleges the trial judge did the same with respect to A.F.’s aunt. The appellant further complains that the trial judge failed to review the inconsistencies in the evidence of these witnesses and explain how they impacted on their credibility or reliability. Finally, the appellant complains that the trial judge gave short shrift to the defence position by failing to properly deal with the issues of consent and honest but mistaken belief in consent.
[63] The trial judge began her charge by telling the jury the general principles that apply in all jury cases, gave general instructions on how to assess the evidence, and instructed the jury on some principles of law that were relevant to this case, such as the rule respecting parties and aiding and abetting. This occupied twenty-two pages of her charge.
[64] Next the trial judge dealt with Inderjeet’s evidence relating to the appellant’s post-offence conduct and cautioned the jury that, because he had formerly been a co-accused, they should look for confirmation of his evidence before relying on it. She then reviewed Inderjeet’s evidence concerning the sexual conversation with the complainant. This occupied seven pages.
[65] The trial judge then reviewed the indictment and the law respecting sexual assault, relating various aspects of the evidence to the law. As part of her review on the issue of consent, the trial judge pointed to the following evidence favourable to the defence:
▪ the absence of evidence of threats made against the complainant by the three accused;
▪ the evidence that the complainant’s clothes were not torn;
▪ the hospital report on which there was no notation of injuries or bruises on her body; and
▪ the evidence of the complainant that she agreed to stay a few more minutes in the basement when asked.
[66] The trial judge then addressed the question of whether the accused knew that the complainant did not consent to the force they applied. In this regard, the evidence she reviewed that was favourable to the defence included:
▪ the evidence of the conversation between the accused persons and the complainant before they went into the basement;
▪ the evidence that the complainant went into the basement with the four men of her own free will;
▪ the evidence that the complainant was laughing when the appellant started tickling her on the couch;
▪ the evidence that the door was open when the sexual activity started in the basement; and
▪ the evidence that the appellant gave her his telephone number and name after the alleged assault.
[67] In the third part of her charge, the trial judge reviewed the evidence of the witnesses seriatim. Although there are no requirements for the format of a charge it would have been preferable if she had not reiterated large parts of her notes of the testimony of the various witnesses seriatim but rather had continued to relate the evidence to the particular issues and positions taken by the parties: see R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 at para. 29. That said, she told the jury that the points she highlighted were no more important than those that she left out and cautioned them to consider all of the evidence. In addition, she told them that it was their recollection of the evidence and not hers that governed. The trial judge’s review of the complainant’s evidence-in-chief occupied twenty-two pages. Her review of the complainant’s cross-examination by the three counsel occupied twenty-six pages.
[68] Some salient portions of the cross-examination that she reviewed were that the complainant testified she did not run home, but walked; that she was in shock; that the police did not ask what actually happened in the room; that she could not remember if she told the police the sexual assault happened in a basement apartment; that she did not mention Ryan trying to put his penis in her mouth that night. She admitted that she was gone for three hours but said she was not outside talking to the men for very long and spent about an hour in the basement. She did not recall giving a statement to the effect that earlier she said she was in the basement for one hour and fifteen minutes. She did not agree that she looked older than fourteen and disagreed that they asked her her age. She said she may have talked to them about boyfriends but that she did not think so. The trial judge reviewed the cross‑examination about the Fubu sneakers and the cell phone. The complainant said a friend gave her the sneakers and the cell phone was her aunt’s. She denied that she said she had “done five guys”. The trial judge also reviewed the cross-examination of the complainant about why she went out, whether she was wearing make-up, whether she used the bathroom before going to the hospital, and about the man and woman in the basement apartment towards the end of the evening.
[69] The trial judge drew to the jury’s attention the following contradictions in the evidence of the complainant and, inferentially, between the evidence of the complainant and Inderjeet which she reviewed next:
▪ the evidence about the conversation respecting playing guys;
▪ the evidence about the conversation respecting “doing” five guys;
▪ the length of time she said she was in the basement compared to the length of time that she was gone;
▪ that the complainant did not mention Ryan trying to put his penis in her mouth when she initially spoke to the police;
▪ the evidence about whether the bedroom door was open, locked, or unlocked;
▪ the evidence concerning how tight the complainant said her pants were; and
▪ the evidence that the complainant said she did not scream because she was too afraid but she was not too afraid to struggle and that she saw a woman outside but did not ask for help.
[70] Similarly, the trial judge’s review of Inderjeet’s evidence-in-chief occupied ten pages of her charge. Her review of the cross-examination by the three counsel occupied twenty pages of the charge. Her review of the evidence-in-chief of the complainant’s aunt, occupied two pages and the cross-examination five pages.
[71] Quite apart from the numbers, the content of the trial judge’s review was fair, referred to the issue of consent, referred to the salient evidence, and her review of the evidence was balanced. In relation to the positions of the Crown and the defence on the issue of consent, the trial judge’s charge was also balanced. As I have indicated, there was no basis for leaving honest but mistaken belief in consent to the jury and any comments by the trial judge in that regard enured to the benefit of the appellant. I would dismiss this ground of appeal.
[72] I would dismiss the appeal against conviction.
The sentence appeal
[73] The appellant submits that the jury’s verdict meant that they rejected the evidence of what occurred in the bedroom and found the appellant guilty solely on his conduct in the living room. I would respectfully disagree that this is the clear import of the jury’s verdict.
[74] In her reasons for sentence, the trial judge made her own analysis of the role of the appellant. Given the jury’s verdict, the trial judge rightly came to her own independent determination of the relevant facts: R. v. Brown, [1991] 2 S.C.R. 518 at 523. With this particular crime there is a significant difference between a sexual assault involving unwanted touching mainly over the clothes and full vaginal intercourse. In the unique circumstances of this case, it was incumbent on the trial judge to determine as a matter of fact the nature of the participation of the appellant consistent with the verdict of the jury. Otherwise we would not know the basis on which she sentenced him.
[75] It was open to the trial judge to accept all credible and trustworthy evidence: R. v. Gardiner, [1982] 2 S.C.R. 368 and it was open to her to conclude as she did that the appellant sexually assaulted the complainant by having vaginal intercourse with her in the bedroom. The difficulty is that the trial judge’s reasons on sentence are not consistent with the jury’s acquittal of the two co-accused. She appeared to be of the opinion that all three co-accused were guilty. However, the trial judge also stated that there was no evidence that the acquittal of the two other accused meant that the appellant did not commit sexual assault in the bedroom. Furthermore, she considered all of the principles and factors relevant to sentencing. Untainted by the trial judge’s impermissible comments concerning the guilt of the two other co-accused, the sentence is nevertheless fit and I would not interfere with it.
[76] Accordingly, although I would grant leave to appeal sentence I would dismiss the appeal as to sentence.
RELEASED: June 29, 2005 (“KMW”)
“Karen M. Weiler J.A.”
“I agree Robert P. Armstrong J.A.”
BORINS J.A. (Dissenting):
I
[77] I have had the advantage of reading the reasons for judgment of Weiler J.A. in which she rejected the seven grounds of appeal relied on by the appellant and dismissed his appeal. I have reached a different decision. In my view, the appellant has met the stringent test for inconsistent verdicts leading to the result that the jury’s verdict convicting him of sexual assault was unreasonable. Consequently, I would allow his appeal and enter an acquittal. In the circumstances, it is unnecessary to consider the remaining grounds of appeal.
II
[78] The appellant, his brother, Ryan Pittiman, and Beswick Goffe, were tried before a jury on an indictment in which they were jointly charged with a single count:
Beswick GOFFE, Roopnarine PITTIMAN AND Ryan PITTIMAN stand charged:
- That they, on or about the 27th day of May, 2000, at the City of Brampton, in the Central West Region, did unlawfully commit a sexual assault on A.F. contrary to section 271 of the Criminal Code of Canada;….
[79] As Weiler J.A. has reviewed the evidence, I do not intend to do so. However, several issues arise based on the evidence that are central to my conclusion that the jury’s verdict was unreasonable.
[80] The charge arose out of one connected series of events involving the three defendants and the complainant, A.F., that began when she met the defendants on the street before she entered the appellant’s house with them. The complainant was the principle witness for the prosecution in respect to the alleged sexual assault. She testified for over two days. In a continuous narrative she described how she met the three defendants and their friend Maheshwar Inderjeet outside the Pittiman residence, how all five of them progressed to the basement living room in the residence where the first sexual assault took place and then to an adjoining bedroom where the final sexual assault took place and, finally, to the street outside the residence. In some respects, A.F.’s testimony was confirmed by Inderjeet who had originally been jointly charged with her sexual assault.
[81] A.F. testified that non‑consensual sexual activity involving the three defendants occurred in two locations. In the living room, each of the defendants sexually touched and fondled her. In the bedroom, the appellant, his brother and Goffe had sexual intercourse with her. While the appellant was engaged in sexual intercourse with A.F., his brother Ryan held her wrists and attempted to place his penis in her mouth. Based on A.F.’s evidence, it is clear that the single count in the indictment comprehended more than one transaction by the appellant, and more than one transaction by each of his co‑accused. Significantly, there is no question that A.F.’s testimony was common to all of the defendants and implicated them in both episodes of the alleged sexual assault.
[82] In both his opening statement and closing argument to the jury, the crown’s position was that the appellant, his brother and Goffe were engaged in a joint enterprise in sexually assaulting A.F. It was referred to as a “gang rape”. Crown counsel submitted that the co‑accused had a common purpose in enticing A.F. into the appellant’s house. That purpose was to engage in sexual activity with her. Moreover, counsel did not suggest to the jury that they could split their verdict and convict one or more accused, and acquit the others. In short, the crown’s position was that A.F. was sexually assaulted by the appellant, his brother and Goffe. This is how the crown’s case was presented at trial. Indeed, a review of A.F.’s testimony, including her lengthy cross‑examination by counsel for each defendant, provides ample support for the crown’s joint enterprise theory. In addition, the crown contended that A.F. was a credible witness.
[83] In her closing instructions, the trial judge told the jury that the crown’s case was that all three defendants sexually assaulted A.F. She also told the members of the jury that the verdicts available to them with respect to each defendant were either not guilty or guilty as charged. As the trial judge essentially reiterated to the jury what crown counsel had said in his closing argument, in my view the jury could not have understood anything other than that the three defendants were engaged in a common enterprise in sexually assaulting A.F.
[84] Another factor, in my view, that supports the inconsistency of the jury’s verdict is the difficulty encountered by the trial judge in determining the facts for the purpose of sentencing the appellant, a task that necessarily required her to interpret the jury’s verdict. I will return to this factor subsequently.
III
[85] As an inconsistent verdict , in essence, is an unreasonable verdict, it is necessary that the reviewing court re‑examine, and to some extent, weigh and consider the effect of the evidence. In the circumstances of this case, giving particular consideration to the position of the crown that I have outlined, the issue is whether a jury properly instructed, on the evidence before it, could reasonably have convicted the appellant and acquitted his co‑accused of sexual assault.
[86] In considering the issue, the court is required to apply the following test explained by Martin J.A. in R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.) at 55‑56:
Where an indictment contains more than one count and the jury convicts on one count and acquits on another count an inconsistency in the verdicts does not of necessity require the conviction to be set aside. The onus is on the appellant to show that the verdicts are so at odds that no reasonable jury who understood the evidence could have properly arrived at that verdict. We think that onus on the peculiar facts of this case has been discharged. Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise. We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to be entered [emphasis added].
[87] Charron J.A. applied this test in R. v. Tillekaratna (1998), 124 C.C.C. (3d) 549 (Ont. C.A.) at paras. 11 and 12:
Having reviewed the evidence, I share the trial judge’s view of the matter. I am quite aware that the jury can reject any theory put to them by either the Crown or the defence. They are also entitled to accept all, part or none of the evidence of any witness. However, I am unable to see any rational basis for the verdict. The evidence with respect to any one incident was too wound up with the evidence on the others to be logically separable. I find the words of Martin J.A. in R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.) apposite to the facts of this case:
Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise. We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to be entered.
In my view, the same result should follow in this case. The verdict of guilty on the one count of sexual assault, standing alone, is unreasonable. Consequently, I would allow the appeal, set aside the conviction and enter an acquittal. In the circumstances, I would dismiss the application for leave to cross-appeal the sentence as moot [emphasis added].
[88] I appreciate that in both McShannock and Tillekaratna the test was articulated in the context of one defendant charged with multiple counts where he was convicted of some counts and acquitted of others. As a matter of principle, I cannot think of any reason why the same test should not apply where multiple defendants are jointly charged in a single count and one defendant is convicted and another defendant is acquitted. In my view, the test applies with even more force, as in this case, where multiple defendants are jointly charged in a single count and the Crown’s case against each defendant is dependent on the evidence of a single witness who was the victim of the alleged crime. Indeed, a significant similarity between this case and McShannock and Tillekaratna is that in those cases, like this case, central to the Crown’s case was the testimony of one complainant who narrated a continuous encounter with the accused and whose evidence was accepted by the jury in respect to some counts, and rejected in respect to others. In McShannock and in Tillekaratna, the complainant’s encounter with one defendant resulted in several charges, while in this case the complainant’s encounter with three defendants resulted in a single count in which the three defendants were jointly charged. Shortly stated, the three cases are similar in that in each case one person was the alleged victim and the prosecution’s case was dependent almost exclusively on the testimony of the victim.
[89] I take these cases to stand for the proposition that where there is no logical reason why the jury convicted one of two persons jointly charged and acquitted the other on a consideration of the same evidence, the verdicts are inconsistent and, therefore, are unreasonable. In my view, this is so even if the evidence , as adduced at trial, was capable of supporting the conviction of the person that was convicted.
IV
[90] I am unable to discern a rational basis for the jury’s verdict convicting the appellant and acquitting his co‑accused. As it supports this view, it is helpful to review in some detail the trial judge’s approach to her findings of fact for the purpose of sentencing the appellant.
[91] As the jury’s verdict was ambiguous, it was necessary for the trial judge to determine the facts on which to sentence the appellant on his conviction for sexual assault. She prefaced her analysis with what she described as “[a] synopsis of the facts in evidence which give rise to the conviction of [the appellant] for sexual assault”. In summary, the synopsis disclosed that A.F. testified that the three accused engaged in non‑consensual sexual touching with her in the living room, after which each accused had forced sexual intercourse with her in the bedroom.
[92] As the trial judge considered the jury’s verdict to be ambiguous, she was required to come to her own independent determination of the relevant facts. She acknowledged that the evidence heard by the jury was capable of supporting the commission of different offences – non‑consensual sexual touching in the living room followed by forced sexual intercourse in the bedroom. She further acknowledged that “[t]he acquittal of the co‑accused does not negate the strong and credible evidence” that the appellant committed both acts of sexual assault. The trial judge interpreted the jury’s acquittal of the two co‑accused on the Crown’s failure to prove “all of the necessary elements of the offence against [them] beyond a reasonable doubt”.
[93] The trial judge continued:
Their reasoning or logic behind these verdicts is unknown. Nor should this sentencing court speculate and seek to formulate a theory about the jury’s reasoning. In the circumstances of the factual ambiguity as to the basis of the jury’s verdict, I must decide what facts would be capable of sustaining the jury’s verdict and in so doing must give the convicted accused the benefit of any doubt regarding the ambiguity in the factual basis on which he was convicted.
I have to be satisfied that where facts are in dispute or ambiguous in relation to the verdict, the Crown has proven those facts on which I base the sentence beyond a reasonable doubt [emphasis added].
[94] In deciding the facts the trial judge accepted A.F.’s evidence describing both acts of sexual assault. She commented that the acquittal of the co‑accused did not diminish the appellant’s culpability “where the evidence against him as to the events in the bedroom is credible and compelling.” She concluded as follows:
On the totality of the evidence at trial, the expressed and factual implications of the jury’s verdict and giving the offender the benefit of any doubt regarding the ambiguity of the factual basis on which he was convicted by the jury, I find the Crown has proved the guilt of Mr. Roopnarine Pittiman beyond a reasonable doubt on the basis of the facts stated at the beginning of these reasons. Those facts as proven are wholly consistent with the jury’s verdict.
Consequently, the trial judge sentenced the appellant for the sexual assault by touching in the living room and the sexual assault by forced sexual intercourse in the bedroom.
[95] With respect to the trial judge’s findings of fact, it is significant that the precise evidence that she accepted in finding that the appellant committed sexual assault by touching in the living room and had forced sexual intercourse with the complainant in the bedroom, and that the jury necessarily accepted in convicting the appellant, was apparently rejected by the jury in acquitting the two co‑accused. However, in my view the trial judge was incorrect in stating that her finding that the crown had proved the appellant’s guilt beyond a reasonable doubt on the basis that the facts in her synopsis were “wholly consistent with the jury’s verdict”. As I have indicated, those facts disclose that each accused sexually touched the complainant in the living room, and that each had forced sexual intercourse with her in the bedroom. If the facts were wholly consistent with the jury’s verdict, the jury would have convicted each of the accused.
[96] I have discussed the trial judge’s analysis of the evidence in finding the facts for the purpose of sentencing the appellant to illustrate her difficulty in doing so given that the jury had acquitted the two co‑accused on the same testimony of A.F. on which they had convicted the appellant. The trial judge characterized this evidence as credible and compelling. As I read the trial judge’s reasons for sentence, implicit in them is her opinion that the evidence established the guilt of all three accused men. In my view, this is significant and cannot be ignored in an inconsistent verdict analysis. As an experienced jurist who presided over the trial, she was in the best position to form an opinion about the jury’s verdict. In my view, the trial judge’s determination of the facts supports my view that the jury reached an inconsistent verdict. I would note that in Tillekaratna, the trial judge also could not explain the inconsistent verdict. Stated rhetorically, given that an experienced trial judge found A.F.’s testimony to be credible and compelling with respect to the conduct of each of the defendants, what logical explanation can there be for the jury’s acceptance of that testimony in convicting the appellant, and its rejection of it in acquitting his co‑accused?
[97] Although it is correct that a jury may accept all, some or none of a witness’ testimony, there must be a demonstrably logical and rational explanation for the acceptance of the witness’s testimony against one defendant and its rejection against another defendant, particularly where, as in this case, the defendants are jointly charged with the commission of a single offence and all of the significant testimony comes from a single witness. While A.F.’s account of the appellant’s participation in the events may be said to be more detailed than her account of the participation of his co‑accused, in my view this is not a logical or rational explanation for his conviction and the acquittal of his co‑accused where A.F.’s testimony, as the trial judge acknowledged, was credible and also established their culpability. For example, her narrative account of the sexual assaults committed by the three defendants described the involvement of each of them and I find nothing in the complainant’s cross‑examination by counsel for Ryan Pittiman and Goffe to explain the jury’s rejection of her evidence implicating them in the commission of the offence.
[98] There was some evidence that was capable of confirming A.F.’s evidence that she was sexually assaulted by the appellant. I refer to the presence of the appellant’s DNA on A.F.’s brassiere, that was capable of confirming sexual touching in the living room, as well as to the appellant’s confrontation with Inderjeet, which was capable of confirming both acts of sexual assault. However, the confrontation was also capable of demonstrating his innocence. While this evidence may have been capable of confirming A.F.’s testimony that she was sexually assaulted by the appellant, it does not provide a logical or rational explanation for why the jury rejected A.F.’s testimony concerning the sexual assaults committed by the co‑accused and their acquittal. As explained in McShannock and Tillekaratna, this is the question that must be answered.
[99] The policy issue on which the inconsistent verdict test is based is fairness to the accused and the maintenance of the integrity of the criminal justice system. In the context of this case, the issue arises because the appellant was convicted and his co‑accused were acquitted on the basis of the testimony of one witness whose evidence, in her reasons for sentence, the trial judge characterized as credible and compelling. In this case, as in most if not all inconsistent verdict cases, there will be evidence capable of supporting the appellant’s conviction. The appellant’s complaint in inconsistent verdict cases is not that there was insufficient evidence to support a conviction. In this case, the appellant’s contention is not that the evidence does not support his conviction. It is that his conviction was unfair, and hence unreasonable, as the jury convicted him relying on the same evidence that it necessarily considered when it acquitted the co‑accused. Contrary to the crown’s contention, while it is accurate to say that there was some additional evidence supportive of the complainant’s testimony in respect to the appellant, this supporting evidence does not address the fairness issue. This evidence does not provide a rational basis or logical explanation for the jury’s verdict acquitting the co‑accused. That there is evidence supportive of the complainant’s evidence implicating the appellant would logically explain his conviction. However, the focus in an inconsistent verdict case is the aberrant verdict, which in this case is the acquittal of the co‑accused. As I have said, in the circumstances of this case this additional evidence does not provide a rational basis or logical explanation for the acquittal of the co‑accused.
[100] As in Tillekaratna, A.F.’s testimony respecting the participation of any one defendant was “too wound up” with her testimony respecting the participation of the other defendants to be logically separable. As one example, A.F. testified that the appellant forced her to have sexual intercourse with him and that immediately following, Goffe forced her to have sexual intercourse with him. I can find no logical explanation for why the jury accepted her testimony about the appellant, but rejected it about Goffe. In this regard, I reiterate the trial judge’s opinion that A.F. was a credible witness on whose evidence the guilt of the three defendants had been proved.
[101] As in McShannock, since the verdicts cannot be reconciled on any logical or rational basis, the illogicality of the verdicts tends to indicate that the jury was confused as to the evidence, or must have reached some sort of unjustifiable compromise. This is especially true because A.F.’s evidence was the same for all of the defendants who, as the crown told the jury, were engaged in a common enterprise.
V
[102] For all of these reasons, the conviction of the appellant, standing alone, constitutes an inconsistent verdict and, therefore, it is unreasonable. I would allow the appeal, set aside the conviction and enter an acquittal.
“S. Borins J.A.”