R. v. Dunchie, 2007 ONCA 887

CITATION: R. v. Dunchie, 2007 ONCA 887

DATE: 20071218

DOCKET: C39569

COURT OF APPEAL FOR ONTARIO

ROSENBERG, LANG and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

OMAR LLOYD DUNCHIE

Appellant

Joseph R. Powers for the appellant

Elise Nakelsky for the respondent

Heard: November 26, 2007

On appeal from conviction by Justice Edward G. McNeely of the Superior Court of Justice, sitting with a jury, dated January 23, 2007.

BY THE COURT:

[1] The appellant appeals from his convictions by a court composed of McNeely J. and a jury for sexual assault, sexual interference and forcible confinement. The appellant raises a number of grounds of appeal relating to the charge to the jury. For the following reasons, the appeal is dismissed.

THE FACTS

[2] The appellant and the complainant lived on different floors of the same apartment building. At the time of the offences, the complainant was thirteen years of age and living with her parents and siblings. The appellant was twenty years of age and living with his girlfriend and her children. There had been some previous contact between the complainant and the appellant. It was the theory of the defence that the complainant had a “crush” on the appellant. The complainant testified that on the day of the offences, the appellant pulled her into his apartment while she was walking by his door. He then forcibly removed her clothes and had unprotected sexual intercourse with her.

[3] The appellant testified that the complainant entered the apartment voluntarily and consented to sexual intercourse. The theory of the defence was that the complainant later told her mother and others that she had been raped when she was confronted about her loss of virginity. The appellant also testified that he believed that the complainant was seventeen years of age because she had told him this and from other circumstances. The complainant denied telling the appellant that she was seventeen and testified that she lied to him telling him that she was eleven.

THE GROUNDS OF APPEAL

The Theory of the Defence

[4] The appellant’s principal ground of appeal, and the only ground we called upon the Crown to respond to, is that the trial judge failed to adequately set out the theory of the defence and the evidence in support of the defence of consent in his charge to the jury. While consent is not generally a defence to charges of sexual assault and sexual interference involving complainants under fourteen years of age, consent could have been a defence in this case if the jury also had a reasonable doubt that the appellant believed that the complainant was fourteen years of age or more, in accordance with the requirements set out in s. 150.1(4) of the Criminal Code.

[5] In our view, the theory of the defence was adequately set out by the trial judge. In reviewing the defence position, he briefly reviewed the appellant’s evidence that the complainant sought him out and had been flirting with him. The trial judge also referred to the appellant’s evidence as to the previous contact between him and the complainant. The jury would clearly understand that the defence position was that the complainant consented to the sexual encounter. It was also the defence position that the complainant eventually claimed that she had been raped because of pressure from her mother and others once it became known that she had lost her virginity. While the trial judge did not review the evidence as to what happened after the encounter when setting out the defence position, he had reviewed that evidence as part of his review of all of the evidence in the case only minutes earlier in the charge.

[6] It would no doubt have been preferable if the trial judge had made more explicit reference to the defence theory about the impact of the events after the encounter in reviewing the position of the defence. However, the jury had just heard defence counsel describe that part of the defence theory and, as we have said, that evidence was reviewed in the charge. In these circumstances, we are satisfied that the jury would have appreciated the theory of the defence and the evidence in support of that defence. Finally, we take into account that there was no objection from defence counsel at trial to this aspect of the charge.

Inconsistencies in the Complainant’s Evidence

[7] There were some inconsistencies in the complainant’s evidence, particularly as to the details of her prior contact with the appellant, how she entered the apartment and whether she heard people on the balcony. The appellant submits that the trial judge did not adequately review these inconsistencies in his charge to the jury. There is no obligation on a trial judge to review all of the inconsistencies in a witness’s evidence. The trial judge reviewed the substance of the complainant’s evidence. In any event, most of these inconsistencies were relatively minor. There was also no objection from defence counsel to this aspect of the charge.

Confirmatory Evidence

[8] In the general part of the charge to the jury on assessing the credibility of witnesses, the trial judge pointed out that they should consider whether the physical evidence tended to support one version of events or another. He then referred to the evidence of the nurse and to evidence from the Centre of Forensic Sciences that sperm was found in the swab taken from the complainant, indicating that the appellant had unprotected intercourse with her. The appellant submits that this evidence was not supportive of the complainant’s version of events because it was conceded that the appellant had intercourse with the complainant.

[9] In our opinion, the trial judge’s reference to the evidence of the nurse as a whole was clearly supportive of the complainant’s version of events because it was also the nurse’s evidence that the complainant had injuries in the vaginal area and was still bleeding a day after the encounter with the appellant. This was consistent with the complainant’s testimony that the appellant had engaged in forced and painful sexual intercourse with her when she resisted. Even if the fact that the appellant had unprotected sexual intercourse offered no support for the complainant’s story, this was of little moment given the significant probative value of the nurse’s evidence as a whole.

Withdrawal of Consent

[10] The complainant’s evidence was that she protested against the appellant’s advances from the beginning of the encounter when he first pulled her into the apartment. For his part, the appellant described a fully consensual encounter throughout. However, in response to an objection from Crown counsel, the trial judge instructed the jury in accordance with s. 273.1(2)(e) of the Criminal Code that even if the complainant originally consented, no consent is obtained where the complainant expresses by words or conduct a lack of agreement to continue to engage in the activity. Defence counsel at trial raised no objection to the trial judge recharging the jury in this respect.

[11] In our view, the trial judge did not err in charging the jury in accordance with s. 273.1(2)(e). The jury was not required to accept all of the complainant’s evidence. It was open to the jury to find that the original encounter was consensual because of the evidence about the complainant’s interest in the appellant. But it was also open to the jury to find that the complainant clearly withdrew her consent when the encounter became painful. If the jury took that view of the evidence, it was important that they understood the legal implications of the complainant’s change of mind.

The Out-of-Court Statements

[12] In the general part of the charge, the trial judge gave the jury a direction concerning the use of hearsay evidence, although he did not use that term. In short, he instructed the jury that aside from out-of-court statements by the appellant and the complainant’s videotaped statement, out-of-court statements were not evidence unless the witness adopted them. He also pointed out that unadopted inconsistent statements could be considered in assessing the evidence of witnesses at trial. The appellant submits that these instructions were misleading in this case because statements made by the complainant’s mother and her neighbours after the encounter were relevant to the complainant’s state of mind.

[13] We are satisfied that this general direction would not have misled the jury. When he later reviewed the testimony of the complainant’s mother and neighbours, the trial judge referred to it as “evidence”. He did not direct the jury that this testimony could not be used as evidence and told the jury to consider whether what happened after the incident was more consistent with the complainant’s version of events or the appellant’s version.

Defence of Mistake

[14] The appellant submits that the trial judge did not fairly present the defence of mistake as to age, and in particular, the objective element of that defence. We do not agree. In the charge and in the recharge, the trial judge instructed the jury that the reasonableness of the steps taken by the appellant to ascertain the complainant’s age would depend on the appearance of the complainant and the accused’s knowledge of the complainant and her associates. These were all factors that were relied upon by the appellant. The trial judge also made it clear that there was no particular step that had to be taken and that an accused does not have to take all possible steps in order to have acted reasonably.

Reasonable Doubt

[15] The appellant submits that the trial judge erred in failing to give the jury the reasonable doubt instruction from R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). However, the classic W. (D.) instruction would not have been accurate in this case. In view of the objective element to the s. 150.1(4) defence, even if the jury accepted the appellant’s testimony, the appellant was not automatically entitled to an acquittal on the charges of sexual assault and sexual interference. It was only if the jury also had a reasonable doubt that the appellant had taken all reasonable steps to ascertain the complainant’s age that he was entitled to be acquitted. Thus, the trial judge charged the jury on several occasions that the burden was on the Crown to prove the case beyond a reasonable doubt and that this burden also applied to the defence of mistake. In the circumstances, we think that this was sufficient and that the jury would have understood the application of reasonable doubt in this case.

[16] Although the trial judge could have provided the classic W. (D.) charge in relation to the forcible confinement charge, it was a judgment call for the trial judge as to whether this direction was necessary or would have been confusing in the circumstances. We note that in response to an objection by defence counsel, the trial judge specifically instructed the jury that the Crown had to prove all elements of forcible confinement, including lack of consent, beyond a reasonable doubt. We are satisfied that the instructions were adequate.

DISPOSITION

[17] Accordingly, the appeal from conviction is dismissed.

Signed: “M. Rosenberg J.A.”

“S.E. Lang J.A.”

“Paul Rouleau J.A.”

RELEASED: “MR” December 18, 2007