CITATION: R. v. Samkov, 2008 ONCA 192

DATE: 20080318

DOCKET: C43226

COURT OF APPEAL FOR ONTARIO

SHARPE, ARMSTRONG and WATT JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ARKADY SAMKOV

Appellant

Frank Crewe for the appellant

Lisa Joyal for the respondent

Heard: March 12, 2008

On appeal from the judgment of Justice Harry Keenan of the Superior Court of Justice dated August 12, 2004.

BY THE COURT:

[1] The appellant was tried by a judge and jury on four counts of sexual assault. He was convicted of three counts and acquitted on one count, and he appeals the convictions to this court.

[2] The three complainants were all employees of a business run by the appellant. One complainant testified that the appellant had made inappropriate comments about her clothing and touched her inappropriately. The jury acquitted the appellant on that count. The second complainant testified that while having a drink at a bar one night the appellant had asked her if she liked to be spanked, rubbed her thigh, and forcibly attempted to put her hand under his shirt to rub his nipples. The final two counts were the most serious and involved a third employee who testified that the appellant had non-consensual intercourse with her on two occasions.

[3] For the following reasons, we have concluded that the convictions must be set aside and a new trial ordered.

Non-direction relating to similar act evidence

[4] The appellant applied to have the charges severed. We are unable to accept the respondent Crown’s characterization of the trial judge’s brief reasons dismissing the severance motion as amounting to a ruling that the evidence on each count was admissible as similar fact evidence on each of the other counts. The trial judge did not specifically state anything to this effect. Moreover, at various points during the argument on the severance motion, both counsel and the trial judge made it clear that they were all proceeding on the basis that the Crown was not asking for a similar act evidence ruling but merely responding to the severance motion.

[5] In his instructions to the jury, the trial judge did segregate the evidence on each count but he made no reference to the use of evidence on one count in relation to any of the other counts. Nor did the trial judge instruct the jury that it was not to use the evidence on one count to infer that the appellant was the type of person whose character or disposition was such that he was likely to have committed the offences charged on the other counts. In our view, the absence of a proper limiting instruction was prejudicial to the appellant and the trial judge erred by failing to give such an instruction: see R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.) at paras. 41–42; R. v. Simpson (1977), 1977 CanLII 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.) at 346–47; R. v. Rarru (1996), 1996 CanLII 195 (SCC), 107 C.C.C. (3d) 53 (S.C.C.) at 85.

Direction relating to s. 265(3)(d) and the exercise of authority

[6] In his charge to the jury, the trial judge paraphrased s. 265(3)(d) of the Criminal Code and instructed the jury that “no consent is obtained where the complainant submits or does not resist by reason of the exercise of authority.” He instructed the jury that if it found that the third complainant was intimidated by the fact that she was present with her boss, then it was entitled to take that into account in assessing whether or not she had consented. Following an objection by the appellant’s trial counsel, the trial judge further instructed the jury that it was entitled to take into account whether the appellant had used his relationship of authority in relation to “controlling” the third complainant. The trial Crown conceded that no evidence had been led to indicate that the complainant's consent had been vitiated by the exercise of authority. As the trial judge himself observed during submissions on the charge, “[n]owhere was it asserted that he exercised his position of authority to provoke them, or to intimidate them.”

[7] In our view, a more careful instruction was called for to ensure that the jury was not misled into thinking that consent was vitiated simply because the appellant was in a position of authority vis-à-vis the complainants. It is the exercise of authority that vitiates consent not the existence of a relationship of authority. The jury should have been instructed that consent would be vitiated only if the Crown proved that the appellant had exercised his authority to obtain consent.

Crown counsel’s closing address

[8] During jury selection, Crown counsel expressed his concern over the appellant’s use of peremptory challenges to exclude all but one woman from the jury. When asked by the trial judge whether there was anything that required corrective action, Crown counsel said “I don’t think so at this time, no, Your Honour”. However, in his closing address to the jury, the trial Crown stated:

As you sit in the room, this jury happens to be 11 men, 1 woman. Mr. Samkov didn’t seem to … want a whole lot of women on his jury, when we look at the selection by [his trial counsel].

[9] We agree that in the context of a trial in which the Crown’s case rested on the assertion that the appellant was a sexual predator who had little regard for women, this comment was inconsistent with the duty of the Crown to present its case in a fair and professional manner. Having let the matter pass at the jury selection stage, Crown counsel should not have made the comment he made in his closing address. Despite the failure of defence counsel to object, the trial judge should have taken appropriate steps to ensure that the jury was not influenced by the comment.

Conclusion

[10] In our view, particularly in light of the non-direction relating to similar act evidence, the appeal must be allowed and the convictions set aside and, following the usual practice, a new trial ordered. We note, however, that as the appellant has now fully served the three-year sentence imposed by the trial judge, this may well be a case where the Crown decides it is appropriate to elect not to proceed with a second trial.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“David Watt J.A.”

RELEASED: March 18, 2008