COURT OF APPEAL FOR ONTARIO

DATE: 20060113

DOCKET: C41971

DOHERTY, SHARPE and JURIANSZ JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Christopher Hicks

for the applicant/appellant

Respondent

• and -

FADHIL ABDULRAZZAK ASFOUR

Eric Siebenmorgen

for the respondent

Applicant/Appellant

Heard: January 9, 2006

On appeal from the conviction entered by Justice B.C. Hawkins of the Superior Court of Justice, sitting with a jury, on April 7, 2004 and the sentence imposed on June 1, 2004.

DOHERTY J.A.:

[1] The appellant was tried on a ten count indictment by a judge and jury. Counts 1, 3, 4, 5, 6, and 10 related to offences involving M.M., the appellant’s girlfriend. The jury convicted on count 1 (sexual assault), count 5 (threatening), count 6 (assault) and acquitted on the other counts. Count 2 alleged a threat against M.B., a friend of the complainant M.M. The threat was allegedly made during the same incident in which M.M. was sexually assaulted and threatened. Count 8 alleged an assault on M.B. with a weapon made at the same time. The appellant was convicted on count 2 and acquitted on count 8. Count 7 (attempt obstruct justice) and count 9 (breach of bail) arose out of a conversation between M.M. and the appellant after the appellant had been arrested on the other charges. The Crown alleged that the conversation was in breach of the appellant’s bail term that he not have contact with M.M., and that during the conversation, the appellant obstructed justice by attempting to intimidate M.M. and prevent her from testifying against him. The appellant conceded that he breached his bail, but testified that he only asked M.M. why she had falsely accused him of the other crimes. The jury convicted on these two counts.

[2] The appellant received a sentence totalling three years.

[3] The appellant appeals conviction and sentence.

The Conviction Appeal

(i) The instruction on the sexual assault charge

[4] M.M. testified that she went to the appellant’s home to tell him that their relationship was over. M.B., her friend, went with her. Eventually, the appellant and M.M. went into his bedroom. He demanded sexual intercourse. When M.M. resisted, he choked her and threatened her. Eventually, M.M. submitted to the appellant’s attack. The appellant forced vaginal intercourse, required M.M. to perform fellatio and then engaged in further vaginal intercourse. After the appellant had finished his attack, he threatened to tell M.M.’s son about their illicit relationship. M.M. was married and did not want her son to know that she was engaged in a relationship with the appellant.

[5] M.M. and M.B. testified that subsequent to the sexual assault, the appellant threatened M.B.’s life. He also threatened M.M. At one point after the sexual assault, the appellant, M.B. and M.M. were seated in the living room. According to M.M. and M.B., the appellant physically assaulted M.M.

[6] M.M. testified that after she had been assaulted in the living room, she became very concerned for her safety and wanted to get out of the apartment. She decided that the best way to make sure she would get out of the apartment was to initiate further sexual activity with the appellant. She invited the appellant to return to the bedroom and engage in sexual intercourse. After the sexual activity was completed on this second trip to the bedroom, the appellant and M.M. left the apartment together.

[7] The appellant testified that all of the sexual activity on both visits to the bedroom was consensual and that he never threatened either M.M. or M.B. He testified that after the sexual activity on the first occasion in the bedroom, M.M. told him that she was married and that her husband was coming to Canada from Iran. This upset the appellant as he was unaware that M.M. was married. They argued, harsh words were spoken, and at one point M.B. inserted herself into the argument. The appellant admitted becoming angry, but denied assaulting anyone.

[8] The appellant further testified that after the argument, M.M. suggested that they return to the bedroom for further sexual activity. They did so. That activity was entirely consensual. He specifically denied that he threatened M.M. with a knife or with scissors. The jury acquitted the appellant on the counts involving the alleged use of those weapons.

[9] At trial, and on appeal, the Crown made it clear that the sexual assault charge stood or fell on the basis of the complainant’s evidence that the sexual activity on the first occasion in the bedroom was non-consensual. The Crown did not allege that the sexual activity in the bedroom on the second occasion could support a conviction on the sexual assault charge. The Crown conceded that M.M. had agreed to and indeed had initiated the sexual activity on the second trip to the bedroom.

[10] The Crown’s case on the sexual assault charge was straightforward. The Crown contended that M.M. did not consent to any sexual activity on the first occasion in the bedroom and that she was physically assaulted and threatened by the appellant when she resisted his advances. The Crown argued that M.M.’s evidence should satisfy the jury beyond a reasonable doubt that she did not consent to any sexual activity on the first visit to the bedroom.

[11] The appellant’s position on the sexual assault charge was equally straightforward. He contended that the sexual activity on the first trip to the bedroom, like the activity on the second, was consensual and that the jury could not be satisfied beyond a reasonable doubt based on M.M.’s evidence that she did not consent to the sexual activity during the first visit to the bedroom.

[12] The trial judge did not tailor his instruction on the law applicable to the sexual assault charge to the positions taken by the parties or to the evidence adduced before the jury. His instructions on the applicable law, particularly those pertaining to the issue of consent, were inaccurate and confusing.

[13] The trial judge did not tell the jury to focus on whether the sexual activity during the first trip to the bedroom could support the charge of sexual assault. To the contrary, his instructions clearly left the jury with the impression that it could convict the appellant based on a finding of non-consent in respect of the sexual activity on either the first or second trip to the bedroom. This was not the case put to the jury by the parties and there was no evidence to support a finding of non-consent in respect of the activity on the second occasion.

[14] The trial judge further misapprehended the evidence when he told the jury that the appellant’s threat to tell M.M.’s son about their relationship was made prior to the sexual activity on the first visit to the bedroom. The threat was made after the sexual activity was completed. This was a significant mistake because the trial judge, relying on s. 273.1(2)(c) of the Criminal Code, erroneously told the jury that the appellant’s threat to tell her son about the affair could vitiate the complainant’s consent. Even if that kind of threat could in some circumstances, as a matter of law, vitiate consent to sexual activity, the threat could not have had that effect here given that it was made after the sexual activity on the first visit to the bedroom. There was no allegation that the sexual activity on the second visit was non-consensual or precipitated by the appellant’s threats.

[15] The trial judge’s misapprehension of the evidence, his instruction that the threat to tell the son could vitiate consent, and his failure to make it clear to the jury that the sexual assault charge turned only on the activity on the first visit to the bedroom could well have led the jury to conclude that it could convict on count 1 if the appellant threatened to tell the son and there was sexual activity after that threat. As stated above, on the case presented by the parties and on the evidence heard by the jury, it could convict of sexual assault only if satisfied beyond a reasonable doubt that M.M. had not consented to the sexual activity on the first visit to the bedroom. Consent vitiated by threats demonstrating an abuse of authority were never in issue on this evidence.

(ii) The instruction on the threatening charges

[16] The trial judge gave no instruction as to the fault component of the threatening charges. The trial judge failed to tell the jury that threatening words or conduct constituted the offence alleged only if the jury was satisfied that the words or conduct were meant to intimidate or to be taken seriously: R. v. Clemente (1994), 1994 49 (SCC), 91 C.C.C. (3d) 1 at 4 (S.C.C.).

[17] On the evidence, if the jury was satisfied that the threats were made, they would in all likelihood have found that they were meant to intimidate or to be taken seriously. Were this the only error, we would seriously consider the application of the curative proviso. As we are satisfied, however, that there must be a new trial on the sexual assault charge and that the threatening charges are closely factually related to the sexual assault charge, we think it would be inappropriate to apply the curative proviso to this error.

(iii) The instruction on the charge of attempting to obstruct justice

[18] The trial judge summarized the Crown’s position on the obstruct justice charge. He made no reference to the defence evidence, the position of the defence, or the elements of the offence. Indeed, on the trial judge’s instruction, the jury would have no way of knowing whether the appellant’s testimony provided a defence to the charge of obstruct justice. The instruction was inadequate.

Conclusion

[19] The various errors made by the trial judge necessitate the quashing of the convictions on the charges of sexual assault, threatening and obstruct justice. While theoretically, the convictions on the charges of assault and breach of bail could survive, we are satisfied that the evidence relating to those charges is so intertwined with the evidence relating to the counts on which there must be a new trial, that it is necessary to quash all of the convictions and direct a new trial on all counts on which the appellant was convicted.

RELEASED: “DD” “JAN 13 2006”

“Doherty J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree R.G. Juriansz J.A.”