COURT OF APPEAL FOR ONTARIO

DATE: 20051012

DOCKET: C40802

RE: HER MAJESTY THE QUEEN (Appellant) – and – ABDELLA BORU (Respondent)

BEFORE: WEILER, MOLDAVER and SHARPE JJ.A.

COUNSEL: Susan G. Ficek and Timothy Morgan for the appellant

Timothy E. Breen for the respondent

HEARD & RELEASED ORALLY: September 29, 2005

On appeal against acquittal by Justice Norman D. Dyson of the Superior Court of Justice, sitting with a jury, dated September 22, 2003.

E N D O R S E M E N T

[1] Following a trial by judge and jury, the respondent was acquitted on two counts of sexual assault. The Crown appeals and seeks a new trial. If a new trial were ordered, it would be the third trial of this matter, the first trial having ended in a mistrial. For reasons that follow, we would dismiss the appeal.

[2] The case for the Crown rested almost entirely on the evidence of the complainant. The appellant did not testify. The complainant’s evidence suffered from many frailties and improbabilities. By way of example, she had significant memory gaps about the night in question due to the consumption of large amounts of alcohol. Also troubling is the fact that on her own evidence, she took no steps to leave the respondent after the alleged initial assault. Instead, she voluntarily accompanied him to downtown Toronto in search of drugs. Likewise, after the second alleged assault, she remained in the apartment watching television while the respondent and his friends slept.

[3] In addition to these concerns, there was evidence from which the jury could find that the complainant had a motive to falsely implicate the respondent in order to preserve her relationship with her boyfriend. In the end, given the many frailties, uncertainties and improbabilities in her evidence, it is apparent that the jury was not prepared to act on her evidence to convict the respondent.

[4] It is against that background that we assess the grounds of appeal raised by the Crown. The first ground relates to the respondent’s statement to the police in which he denied having sex with the complainant and also sullied her reputation. The trial judge ruled the statement inadmissible. Assuming, without deciding, that he erred in this regard and that the statement should have been admitted as after the fact evidence from which the jury could infer guilt, the error in our view was harmless. Put differently, we are not persuaded that the error was such that we can say with reasonable certainty that the outcome may well have been affected by it: see R. v. Morin, [1988] 2 S.C.R. 354 at 374.

[5] We take a similar view with respect to the second ground of appeal. Accepting, as we do, that the trial judge wrongly concluded that there was evidence capable of supporting the defence of honest but mistaken belief in consent, we note that in his charge, the trial judge never formally instructed the jury on the elements of that defence. His only mention of it, more by way of a passing remark, occurred in the context of his review of the theory of the defence. Notably, the jury did not ask for further instructions on the matter and the speed with which they returned their verdicts leads us to conclude that they simply were not prepared to act on the complainant’s testimony to convict the respondent.

[6] As for the third ground relating to the trial judge’s refusal to permit the Crown to call expert evidence, if the trial judge erred, again, the error was inconsequential. At most, the proposed expert would have testified that DNA from an unknown third person found on the complainant’s underwear might or might not have been semen.

[7] In refusing to order a new trial, we have considered the alleged errors both individually and cumulatively. Having done so, we are not persuaded that the test in Morin has been made out. Accordingly, the appeal is dismissed.

Signed: “K.M. Weiler J.A.” “M.J. Moldaver J.A.” “Robert J. Sharpe J.A.”