DATE: 20061123

DOCKET: C43297

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., DOHERTY and MACPHERSON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN Respondent

• and -

MARK AUSTIN Appellant

Anthony Moustacalis for the appellant Andrew Cappell for the respondent

Heard: November 6, 2006

On appeal from the conviction entered by Justice G. Gordon Sedgwick of the Superior Court of Justice dated October 20, 2004 and the sentence imposed on November 22, 2004.

DOHERTY J.A.:

[1] The appellant was convicted of one count of sexual assault causing bodily harm (count one), one count of sexual assault (count three), and acquitted on two charges of uttering a death threat (counts two and four). W.J. was the complainant on all four counts. Counts one and two arose out of an incident in March 2001. Counts three and four related to an incident in the summer of 2001.

[2] W.J. and the appellant lived in the same apartment building. Prior to March 2001, they were friends and had had a sexual relationship. W.J. testified that one day in March at about 2:00 a.m., the appellant banged on her door. When she let him in, it was clear to her that he was very drunk. He quickly became very aggressive, pushed her on the couch and raped her. According to W.J., the appellant also threatened her.

[3] W.J. testified that she suffered bruising and vaginal bleeding as a result of the attack. She went to the hospital in Kingston the next day and was treated and released on the same day. A doctor’s report filed at trial confirmed that W.J. attended the hospital in Kingston and complained of vaginal bleeding. She did not tell anyone at the hospital that she had been sexually assaulted. The doctor’s physical observations neither supported nor contradicted W.J.’s allegations.

[4] W.J. testified that after the attack, she did her best to avoid the appellant around the apartment building, especially when he had been drinking. She would not let him into her apartment if she thought he had been drinking. W.J. did let the appellant into her apartment on various occasions when he was sober to use her washing machine or her telephone. He behaved himself.

[5] W.J. also testified that in the summer of 2001, the appellant and a friend arrived at her door. She decided to let them in because she thought she would be safe as the appellant was not alone. Shortly after the two men entered the apartment, the appellant, who had been drinking, attacked W.J., ripping her shorts and underwear. His friend persuaded the appellant to stop the attack and the two men left the apartment. W.J. testified that the appellant threatened her as he was leaving the apartment.

[6] W.J. did not report either assault to the police until September 2003, over two years after the second assault. The assaults came to the attention of the police after W.J.’s son was charged with causing damage to the appellant’s apartment. He had crawled into the space above the ceiling of the appellant’s apartment and poked holes in the appellant’s ceiling with a screwdriver. W.J.’s son told the police that he damaged the appellant’s apartment ceiling hoping that it would frighten the appellant and cause him to move out of the building. W.J.’s son had found a letter written by his mother in which she indicated she had been raped by the appellant. He believed this allegation and it also appeared to him that his mother was afraid of the appellant. The son’s explanation for damaging the appellant’s ceiling led the police to interview W.J. in September 2003. She confirmed that she had been sexually assaulted by the appellant in 2001.

[7] The appellant testified and denied that either assault occurred. His friend, who was allegedly present at the second assault, also testified and denied that the appellant had assaulted W.J. in his presence. He acknowledged that he had been in W.J.’s apartment with the appellant on one occasion, but testified that nothing untoward had happened.

[8] It was the position of the appellant at trial that W.J. had falsely accused him of sexual assault to provide her son with an excuse for damaging the appellant’s apartment. The appellant also testified that W.J. had become upset when she went to the appellant’s apartment and found him with another woman.

[9] The evidence at trial lasted less than two days. Essentially, the case came down to the very different versions of the two incidents given by W.J. and the appellant. The trial judge said very little about the evidence in his instructions. He provided the jury with proper instructions on reasonable doubt, the assessment of the credibility of witnesses, and the essential elements of the offence.

The Jury’s Question

[10] The jury had many questions during its deliberations which spanned two days. About five hours into the deliberations, the jury sent several questions to the trial judge. These included the following question:

[S]hould we, the jury, be focussing more on if the Crown proved its case beyond a reasonable doubt or the credibility of the complainant and the accused, both issues together, or does one issue take precedent?

[11] The trial judge heard submissions from counsel. Crown counsel suggested a specific answer to the question. Counsel for the appellant agreed that Crown counsel’s proposed answer should be given to the jury. He suggested no changes or additions.

[12] The trial judge adopted the suggestion of Crown counsel and instructed the jury:

First of all, I would remind you that you must assess the credibility of all the witnesses that you heard; and second, after you have done that, that is like a first step, you have to decide what you believe and accept as the facts, and then you have to consider as a kind of second or third step – third step really because the second step is making your findings of fact, you have to consider and decide whether the facts you have found would support the proposition that the Crown has or has not proven its case beyond a reasonable doubt; and I hope you see that these are sort of – they are not independent issues; one is related to the other and maybe it’s not unfair to say they are like steps in a process. [Emphasis added.]

[13] Appellate counsel resiles from the position taken by trial counsel and submits that the trial judge’s response is wrong in law and constitutes reversible error.

[14] Arguments by appellate counsel that fly in the face of positions taken by counsel at trial quite properly attract judicial scepticism and resistance. The significance of counsel’s position at trial to the merits of the argument on appeal will depend on the nature of the argument advanced on appeal. Where it is alleged that an instruction to the jury was unclear, inadequate on a legal or evidentiary issue raised in the trial, or did not treat the position of the appellant at trial fairly or fully, counsel’s approval of the jury instruction and to a lesser extent his or her failure to object, will be a significant consideration on appeal: R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 59 (Ont. C.A.); R. v. Johnson (2002), 2002 44987 (ON CA), 166 C.C.C. (3d) 44 at para. 57 (Ont. C.A.). Similarly, where an appellant argues that the trial judge failed to give an instruction that was discretionary, counsel’s failure to request the instruction at trial will be a significant consideration on appeal: R. v. Glasgow (1996), 1996 4009 (ON CA), 110 C.C.C. (3d) 57 at 60 (Ont. C.A.). Counsel’s position at trial will become all the more significant on appeal if it appears that the position reflects a calculated tactical decision: see R. v. Lomage (1991), 1991 7228 (ON CA), 2 O.R. (3d) 621 (C.A.); R. v. Chan (1989), 1989 ABCA 284, 52 C.C.C. (3d) 184 (Alta. C.A.), leave to appeal to S.C.C. refused (1990), 54 C.C.C. (3d) vi; R. v. Bevan (1993), 1993 101 (SCC), 82 C.C.C. (3d) 310 at 327 (S.C.C.).

[15] Where, however, the argument is that the trial judge misstated the law in his or her instructions, counsel’s position at trial is of less significance on appeal. If an error in law is demonstrated, counsel’s position at trial is potentially relevant to the application of the curative proviso: see R. v. Chambers (1990), 1990 47 (SCC), 59 C.C.C. (3d) 321 at 344 (S.C.C.). However, counsel’s position cannot justify treating an instruction that is wrong in law as a correct statement of the law. A misstatement of the law is no less an error in law because it was made with the full support and approval of trial counsel.

[16] On this appeal, counsel contends that the trial judge’s answer misstated the legal principles applicable to the application of the reasonable doubt standard to credibility assessments. If appellate counsel is correct, it is of no consequence, except perhaps to the application of the curative proviso, that the misstatement was made with the blessing of trial counsel.

[17] In assessing the adequacy of the trial judge’s response, I begin with the observation that all jury questions requesting clarification of the trial judge’s instructions are important: R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 at 410-11 (S.C.C.). This question was particularly important. It went to the heart of the jury’s task. The jury clearly appreciated that the application of the reasonable doubt standard and their assessment of the credibility of the witnesses were interrelated. Their question asked for clarification of that relationship. With respect, I think the trial judge’s response misstated that relationship.

[18] The trial judge told the jury to proceed in three stages. He told the jury to first decide what they believed, to next determine the facts based on the evidence they believed, and third, to determine whether the Crown had proved the guilt of the accused on the facts as they had found them.

[19] On the approach outlined by the trial judge in his answer to the question, the jury’s verdict turned on who they believed without regard to the requirement that the Crown prove the case beyond a reasonable doubt. I say this because the jury was told to “decide what you believe and accept as the facts”. They were then told to apply the reasonable doubt standard to the facts they had found based on the evidence they accepted. On the trial judge’s approach, if the jury decided they believed W.J.’s claim that she was sexually assaulted, they would find as a fact that she was sexually assaulted. Up to this point in their deliberations, they would not have considered the reasonable doubt standard. They would then apply the standard of reasonable doubt, not to the entirety of the record, but to the fact they had found, that is that W.J. was sexually assaulted. On this approach, the entire exercise comes down to a determination of who the jury believed.

[20] The trial judge’s instruction ignored the possibility that the jury might not be able to decide which version of the events to believe and, therefore, would be unable to make the findings of fact described by the trial judge. Recognition of the possibility that a jury may not be able to come to a definitive conclusion with respect to the credibility of competing versions of the relevant events is integral to a proper application of the reasonable doubt standard. This potential middle ground is especially important in cases like this one where the accused testifies and presents a version of events that is diametrically opposed to that given by the Crown witnesses. The jury must understand that if it cannot decide whose story to believe, it must acquit: see R. v. W.(D.), supra, at 409.

[21] The jury’s question required that the trial judge make it clear that the ultimate question was whether the Crown had proved the essential elements of each offence beyond a reasonable doubt. The jury should have been told that in making that ultimate determination, they had to assess the credibility of the witnesses, but in doing so it was not merely a question of choosing between the competing versions of events. The jury should have been told that the reasonable doubt standard required that the jury decide whether the appellant’s evidence, considered in the context of the entirety of the evidence, left the jury with a reasonable doubt in respect to any elements of the offence.

[22] The words used by Cory J. in R. v. W.(D), supra, at 409 provide a succinct and clear response to the jury’s question:

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. [Emphasis added.]

[23] The language used in R. v. W.(D.), supra, and similar language used in other cases, see e.g. R. v. Minuskin (2003), 2003 11604 (ON CA), 181 C.C.C. (3d) 542 at para. 22 (Ont. C.A.), makes the two important points missed by the trial judge in his response to the jury. First, the jury is not required to believe one version or the other of the relevant events in order to return a verdict. Second, the reasonable doubt standard must be applied to the totality of the evidence not just to the evidence accepted by the jury as true. To put it in terms that have meaning on the facts of this case, the jury had to understand that they did not have to believe the appellant to acquit him.

[24] Although the trial judge correctly instructed the jury on the reasonable doubt standard and the principles in R. v. W.(D.), supra, in his main charge, the curative proviso cannot be applied. The misdirection went to the most fundamental of the principles governing a fair trial. The misdirection came in response to a jury’s question posed after several hours of deliberation. Although the deliberations continued for several more hours and the jury ultimately acquitted on two of the charges, I cannot say with any confidence that there is no realistic possibility that the verdict would have been different had the jury received a correct answer to their question. The misdirection constitutes reversible error.

Other Grounds of Appeal

[25] Counsel for the appellant alleges several other errors in the trial judge’s instructions. None were raised at trial and most do not require comment. I will, however, deal briefly with three of the arguments.

[26] Counsel argues that the trial judge was obliged in his instructions to set out the position of the defence and relate the evidence to the position of the defence.

[27] This was a short, straightforward trial. W.J. said she was sexually assaulted and threatened twice. The appellant denied that he had assaulted or threatened her on either occasion and advanced an explanation or motive for her false accusation. Both counsel made comprehensive closing arguments. The trial judge briefly, but accurately, outlined the simple straightforward positions of the parties. Neither counsel asked for a more detailed statement of their respective positions.

[28] It is impossible for me to imagine, even in the rarefied air of the Court of Appeal, that any jury could not have understood the appellant’s position. His position could not have been simpler or clearer – he did not sexually assault or threaten W.J. and she fabricated the charges to help her son. The trial judge adequately dealt with the position of the parties.

[29] The trial judge said next to nothing about the evidence in his instructions. During its deliberation, the jury asked two questions which indicated that they needed assistance in recalling parts of the evidence. In a straightforward case like this, no elaborate review of the evidence is necessary. The extent to which the evidence should be reviewed is very much in the discretion of the trial judge, particularly where counsel do not suggest that the trial judge should approach the evidence in a certain way in his or her instructions. Even in a short case like this, however, some brief reminder of the salient points of the evidence and their significance to the positions of the parties would probably be of some assistance to this jury. Certainly, I do not see how it could hurt. In so holding, I do not suggest that the failure to review the evidence in this case would, standing alone, justify appellate intervention.

[30] Counsel also argued that the trial judge failed to give proper instructions as to the use that could be made of various consistent statements made by W.J. In the course of the evidence, W.J. testified that she told several people about the attacks on her by the appellant before she finally told the police almost two and a half years after the first attack occurred. W.J. identified a person that she said she told about the first attack within days of that attack. Much of this evidence came out on cross-examination.

[31] In cross-examination, W.J. identified a letter and what appeared to be a draft of the same letter. She said that she had written the letter and delivered a copy of it to the appellant shortly after the incident in March. The letter accused him of rape. The defence argued that the letters were written in September 2003 to try and create some support for the allegations that W.J. had made to the police in an effort to assist her son.

[32] There was no objection to the admissibility of any of the prior consistent statements. Nor was the trial judge asked to give the jury any specific instructions in respect of any of the statements.

[33] I do not propose to examine the admissibility of each of the statements or to analyze the instructions which could have been given in respect of each of the statements. I wish only to say that in a case like this one where credibility is important and various prior consistent statements are adduced in evidence, the trial judge should make it clear to the jury that the existence of a prior consistent statement cannot in and of itself enhance the credibility of the person making those statements. Evidence does not become more credible because it has been repeated several times in the period between the relevant event and the trial: R. v. Divitaris (2004), 2004 9212 (ON CA), 188 C.C.C. (3d) 390 at para. 28 (Ont. C.A.). This instruction was of significance in a case like this where credibility is the crucial issue. A jury, as reasonably intelligent laypersons, may well consider that consistency is a hallmark of reliability. The law of evidence takes a very different view. As my colleague, Feldman J.A., put it in R. v. Divitaris at para. 28: “[A] concocted statement, repeated on more than one occasion, remains concocted”.

[34] The trial judge should also have explained to the jury that the contents of the letters written by W.J. could not constitute evidence of the truth of the allegations in those letters. The jury should have been told that the relevance of the letters depended on when they were written. If the jury concluded they were written in September 2003, then clearly the letters supported the defence theory. If the jury decided that the letters were written shortly after the time of the first assault, the letters refuted the suggestion that W.J. had fabricated the allegations in September 2003 to help her son.

[35] Finally, the appellant argued that the evidence of W.J.’s son required a specific limiting instruction. Once again, this request was not made at the trial. During his evidence, W.J.’s son indicated that he believed that his mother had in fact been raped by the appellant. His belief led him to damage the appellant’s apartment.

[36] The son’s opinion that his mother had in fact been sexually assaulted was irrelevant and of no use to the jury, except to explain why he vandalized the apartment. That explanation was in turn relevant to why W.J.’s allegations came to the attention of the police.

[37] I think there was a danger that the jury would use the son’s evidence to support the credibility of W.J. The jury should have been told that his evidence was admitted only as an explanation for how the allegations came to attention of the police. It would have been preferable had the jury been told that the son’s belief in the truthfulness of his mother’s allegations could not assist them in determining the verdicts.

Conclusion

[38] I would allow the appeal, set aside the convictions, and direct a new trial.

RELEASED: “R.M” “NOV 23 2006”

“Doherty J.A.”

“I agree R. McMurtry C.J.O.”

“I agree J.C. MacPherson J.A.”