W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. Somers, 2009 ONCA 567
DATE: 20090713
DOCKET: C49651
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., MacPherson and Cronk JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Scott Somers
Appellant
Daniel A. Stein, for the appellant
Peter Scrutton, for the respondent
Heard and released orally: July 9, 2009
On appeal from the conviction entered on June 2, 2008, and the sentence imposed on December 3, 2008 by Justice John C. Kennedy, sitting with a jury.
ENDORSEMENT
[1] The appellant, Scott Somers, was convicted of sexual assault by Kennedy J., sitting with a jury, on 2 June 2008. He was sentenced to four years in prison on 3 December 2008. He appeals against both the conviction and the sentence.
Conviction appeal
[2] The appellant and the complainant, separately, attended the same party. Both drank a great deal at the party. The complainant was driven to her home and fell asleep on her bed. The appellant returned to his home, but then decided to walk to the complainant’s home, which he entered.
[3] It is conceded that the appellant and the complainant engaged in sexual intercourse on the night in question. The central issue at the trial was whether the complainant consented to the sexual activity – the appellant testified that she did; the complainant testified that she said “No”.
[4] The appellant submits that once the trial judge decided to charge the jury on capacity, he had to charge as well on the possibility that the appellant had a mistaken belief in whether the complainant gave a valid consent.
[5] We agree with this submission. The context within which this issue arose is important. At trial, the Crown and defence positions were identical – the sole issue was whether or not the complainant consented to the sexual activity.
[6] During pre-charge discussions with counsel, the trial judge raised an alternative basis for the potential criminal culpability of the appellant, namely, that if the jury accepted that the complainant consented to the sexual activity, they could still find the appellant guilty if, due to intoxication or sleep or a combination of both, the complainant was incapable of providing a valid consent.
[7] When the trial judge raised this possibility, defence counsel took the position that the trial judge also charge the jury on the possibility that the appellant had an honest but mistaken belief in the complainant’s consent. The trial judge ultimately charged the jury about the complainant’s capacity to consent. He instructed the jury that even if they found that the complainant did consent, the appellant could still be found guilty if the Crown proved that the complainant was incapable of giving valid consent. However, at no point did the trial judge instruct the jury to consider whether the appellant had an honest but mistaken belief as to whether the complainant gave a valid consent.
[8] The Crown contends that it was not necessary for the trial judge to give this instruction because it lacked an air of reality. The appellant’s position at trial was that the complainant unequivocally consented to the sexual activity. His evidence was that she was an active, willing participant. He also denied that he was confused about the sexual encounter. These factors did not provide an air of reality to a mistaken belief in consent.
[9] With respect, this submission misses the fundamental fairness point at stake in the trial. Once the trial judge decided to introduce a second potential basis for a finding of criminal culpability that was directly contradictory to the complainant’s evidence (namely, that she understood what was happening, formed an opinion, and communicated it to the appellant – “No”), in fairness, he should have put to the jury, as raised by defence counsel, a similar alternative scenario relating to the appellant, namely, that his honest belief about the complainant’s consent was mistaken. This is particularly so when it is recalled that on the night in question both the appellant and complainant had consumed a substantial amount of alcohol, thus raising a serious concern about the reliability of both of their purported clear- but opposite – memories of the events of the evening.
[10] On this ground alone, the appeal is allowed and a new trial is ordered.
“D. O’Connor A.C.J.O.”
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”