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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. F.L., 2009 ONCA 813
DATE: 20091117
DOCKET: C48306
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Cronk and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
F. L.
Appellant
Michael Dineen, for the appellant
Peter Scrutton, for the respondent
Heard: November 12, 2009
On appeal from the conviction entered by Justice Edward Belobaba of the Superior Court of Justice, dated January 10, 2008, and the sentence imposed by Justice Belobaba on March 27, 2008.
ENDORSEMENT
[1] The appellant was convicted of one count of sexual assault after trial by judge and jury and was sentenced to four years’ imprisonment. He appeals his conviction and sentence.
[2] The appellant is an ordained Baptist minister from whom the complainant sought spiritual counselling and treatment. After approximately seven years of “treatment” by the appellant, the 24-year-old complainant moved into the appellant’s home following an argument with her mother. The Crown alleged that non-consensual sexual activity between the appellant and the complainant rapidly ensued at the appellant’s instigation.
A. Conviction Appeal
[3] The appellant raises two grounds of appeal. Both relate to the manner in which the trial judge dealt with the issue whether any consent given by the complainant to the sexual acts was vitiated by s. 273.1(2)(c) of the Criminal Code, which reads as follows:
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
[4] The appellant’s first argument is that the trial judge failed to adequately correct the repeated misstatements of the law by Crown counsel at trial (not Mr. Scrutton) in his closing address. In that address, Crown counsel wrongly asserted that the fact of the appellant’s relationship with the complainant (namely, his role as her spiritual advisor and pastor), without more, was sufficient to vitiate the complainant’s consent.
[5] The error in this proposition is that s. 273.1(2)(c) of the Code requires proof by the Crown of an inducement to sexual activity by the abuse of a position of trust, power or authority. The mere existence of a relationship of trust, power or authority is insufficient to vitiate consent to sexual activity.
[6] In his original jury charge, the trial judge correctly referenced s. 273.1(2)(c) of the Code; however, he did not correct Crown counsel’s misstatements of the law. On the contrary, in outlining the Crown’s position at trial to the jury, the trial judge expressly repeated the error.
[7] The trial judge readdressed this issue on two subsequent occasions – once in response to a request by defence counsel and again in answering a question from the jury.
[8] In the end, we are satisfied that the trial judge’s instructions, viewed as a whole, made it clear to the jury that the mere fact of the relationship between the appellant and the complainant was insufficient to vitiate consent under s. 273.1(2)(c) of the Code. The trial judge told the jury that the determination of whether consent had been vitiated depended on the facts and the circumstances of the particular case and on whether the Crown had established beyond a reasonable doubt that there had been an abuse of the position of trust, power or authority. This instruction clearly told the jury that proof of the abuse of the relationship between the parties, and not merely proof of the relationship itself, was necessary to vitiate consent. Thus, the trial judge corrected any harm that resulted from Crown counsel’s misstatements of the law.
[9] We, therefore, would not give effect to this ground of appeal.
[10] The appellant’s second argument is related to the first. He contends that in the particular circumstances of this case, especially given Crown counsel’s closing address, the trial judge’s correcting instruction was inadequate because it merely recited the relevant section of the Code regarding vitiation of consent.
[11] We disagree for two reasons. First, as we have already indicated, the trial judge’s correcting instruction went beyond mere repetition of s. 273.1(2)(c) of the Code.
[12] Second, on this record, the jury can have been left in no doubt that sexual activity between the appellant and the complainant could only have occurred in the context of an exploitation by the appellant of his relationship with the complainant. While in some cases an elaboration of what constitutes “abuse” for the purpose of s. 273.1(2)(c) may be advisable (see for example, R. v. Hogg (2000), 2000 CanLII 16865 (ON CA), 148 C.C.C. (3d) 86 (OCA)), that is not this case.
[13] Accordingly, the conviction appeal is dismissed.
B. Sentence Appeal
[14] The appellant also appeals from his sentence of four years’ imprisonment, primarily on the basis of an alleged misapprehension of evidence by the trial judge.
[15] We agree that the trial judge misapprehended the evidence in question. In so doing, he erred in principle. As a result, it falls to us to determine an appropriate sentence.
[16] In our opinion, a sentence of four years’ imprisonment is fit. This crime involved a serious breach of trust over several months. The complainant was a vulnerable and naïve young woman. The negative impact of the appellant’s wrongful conduct on the complainant has been profound. We would not alter the sentence imposed.
[17] Accordingly, leave to appeal sentence is granted and the sentence appeal is dismissed.
“D. O’Connor A.C.J.O.”
“E.A. Cronk J.A.”
“David Watt J.A.”