Her Majesty the Queen v. J.M.H. [Indexed as: R. v. H. (J.M.)]
99 O.R. (3d) 761
Court of Appeal for Ontario,
Simmons, Rouleau and Watt JJ.A.
November 26, 2009
Criminal law -- Appeals -- Crown appeal from acquittal -- Error of law alone -- Whether trial judge committed error of law alone in his treatment of evidence of consent in sexual assault trial -- Two phrases from a poem written by complainant after first alleged sexual assault used by trial judge as basis for reasonable doubt regarding consent -- Poem written two months before second alleged assault -- Trial judge's failure to consider entire content of poem and complainant's trial evidence instead of focusing on two passages from poem as sole basis for reasonable doubt regarding consent amounting to error of law alone -- Error to rely upon poem written before second offence as creating reasonable doubt regarding consent on that offence -- Crown meeting heavy burden that verdict would not necessarily have been the same but for legal error -- New trial ordered.
The accused was charged with two counts of sexual assault. The Crown alleged that he had unprotected sexual intercourse with the 17-year-old complainant on two occasions about three months apart. The accused denied having sexual intercourse with the complainant. The Crown produced a copy of a poem written by the complainant shortly after the first alleged incident as part of the narrative of her complaint. The trial judge found that sexual intercourse took place, but was not satisfied beyond a reasonable doubt that it took place without the complainant's consent. He based his conclusion on the issue of consent on certain words and phrases in the complainant's poem. He made no reference to the complainant's sworn testimony at trial about her lack of consent to the sexual acts. The Crown appealed the accused's acquittal.
Held, the appeal should be allowed.
It was open to the trial judge to consider the impact of the poem on the complainant's credibility and the reliability of her account of the events in question. It was open to him to focus on specific passages in the poem in deciding the issue of consent. However, he failed to put those passages in the context of the poem as a whole and the complainant's testimony at trial that she did not consent to have intercourse on either occasion. As a result, he failed to direct himself to all the evidence bearing on the issue of consent. An erroneous approach to the evidence can amount to an error of law alone and it was such an error in this case. He also erred in considering the poem as dispositive of the issue of consent for the second offence, which allegedly occurred almost two months after the poem was written. His approach to the evidence constituted an error of law. The Crown has met its heavy burden of establishing that the verdict would not necessarily have been the same without the trial judge's erroneous approach to the evidence.
APPEAL from the acquittal entered by Stong J. of the Superior Court of Justice dated September 29, 2008 on charges of sexual assault.
Cases referred to R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57, 111 N.R. 62, J.E. 90-946, 86 Sask. R. 142, 56 C.C.C. (3d) 181, 77 C.R. (3d) 370; R. v. Batista, [2008] O.J. No. 4788, 2008 ONCA 804, 238 C.C.C. (3d) 97, 62 C.R. (6th) 376, 181 C.R.R. (2d) 300 (C.A.); R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, 266 D.L.R. (4th) 42, 347 N.R. 268, J.E. 2006-916, 207 C.C.C. (3d) 481, 38 C.R. (6th) 42, 69 W.C.B. (2d) 721, EYB 2006-104245; [page762] R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, 88 N.R. 161, J.E. 88-1374, 30 O.A.C. 81, 44 C.C.C. (3d) 193, 66 C.R. (3d) 1, 5 W.C.B. (2d) 309; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639, 80 O.A.C. 161, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4, 26 W.C.B. (2d) 436 (C.A.); R. v. Schuldt, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76, 24 D.L.R. (4th) 453, 63 N.R. 241, [1986] 1 W.W.R. 673, 38 Man. R. (2d) 257, 23 C.C.C. (3d) 225, 49 C.R. (3d) 136, 15 W.C.B. 339; R. v. Sunbeam Corp. (Canada), 1968 CanLII 33 (SCC), [1969] S.C.R. 221, [1968] S.C.J. No. 94, 1 D.L.R. (3d) 161, [1969] 2 C.C.C. 189, 56 C.P.R. 242; R. v. Sutton, [2000] 2 S.C.R. 595, [2000] S.C.J. No. 53, 2000 SCC 50, 192 D.L.R. (4th) 411, 262 N.R. 384, J.E. 2000-2147, 230 N.B.R. (2d) 205, 148 C.C.C. (3d) 513, 38 C.R. (5th) 39, 47 W.C.B. (2d) 579; R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207, [1996] S.C.J. No. 62, 135 D.L.R. (4th) 214, 197 N.R. 105, J.E. 96-1142, 76 B.C.A.C. 25, 106 C.C.C. (3d) 508, 48 C.R. (4th) 137, 36 C.R.R. (2d) 21, 30 W.C.B. (2d) 524; R. v. Vézeau, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, 66 D.L.R. (3d) 418, 8 N.R. 235, 28 C.C.C. (2d) 81, 34 C.R.N.S. 309; R. v. Wild, 1970 CanLII 148 (SCC), [1971] S.C.R. 101, [1970] S.C.J. No. 69, 11 D.L.R. (3d) 58, 72 W.W.R. 603, [1970] 4 C.C.C. 40, 12 C.R.N.S. 306
Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 676(1)(a), 686(1)(a), (i), (ii)
Alexandra Campbell, for the appellant. Misha Feldmann, for the respondent.
The judgment of the court was delivered by
[1] WATT J.A.: -- Allpoetry.com is a website where members can post poems they have written. S.A., a 17-year-old high school student, and her younger sister, J.A., were members of allpoetry.com in 2006. Each posted poems on the website.
[2] S.A. wrote a poem, "Black Dark", and posted it on allpoetry.com. The poem referred to the first of two sexual assaults she alleged were committed on her by a member of her extended family, J.M.H.
[3] At J.M.H.'s trial on two counts of sexual assault, counsel for J.M.H. relied on the argument that S.A.'s conduct after each alleged offence, in particular her continued contact with J.M.H. and delay in making any complaint, was inconsistent with her later claims of sexual assault.
[4] The poem, "Black Dark", made its way into evidence as an exhibit at J.M.H.'s trial. Although S.A. was cross-examined on certain aspects of the poem, the prosecutor chose to file "Black Dark" as an exhibit during the examination-in-chief of J.A. The basis for admission advanced by the prosecutor was that the poem would assist in establishing the narrative of S.A.'s complaint, thereby deflecting J.M.H.'s assertion that S.A.'s later conduct negated the truthfulness of her allegations of sexual [page763] assault. The prosecutor denied any reliance on the poem to establish the truth of its contents.
[5] Trial counsel for J.M.H. (the respondent) objected to the admission of the poem as evidence, but was more concerned about the prosecutor inviting J.A., who was not the author of the poem, to give evidence about the meaning of the poem.
[6] At issue here is the manner in which the trial judge used the poem in concluding that the prosecutor had failed to establish beyond a reasonable doubt that S.A. did not consent to have sexual intercourse with the respondent on each occasion charged.
[7] For the reasons that follow, I would allow the Crown's appeal from the respondent's acquittal on both counts of the indictment and order a new trial.
The Facts
Overview
[8] The case for the prosecution was that on two occasions about three months apart, February 11 and May 20, 2006, S.A. stayed overnight at J.M.H.'s house. On each occasion, S.A. lay down on J.M.H.'s bed. J.M.H. was on the opposite side of the bed. On February 11, 2006, S.A. was intoxicated. On May 20, 2006, S.A. was sober.
[9] In both February and May, J.M.H. moved from his side of the bed towards S.A. Each time, he made sexual advances that S.A. rejected. Finally, J.M.H. removed S.A.'s lower clothing, as well as his own, and had unprotected sexual intercourse with her without her consent. After each incident, S.A. continued to visit J.M.H.'s house and to "hang out" with him.
[10] J.M.H., who had no previous convictions, gave evidence on his own behalf. He could not recall ever having slept in the same bed as S.A. and denied ever having sexually assaulted her.
The poem "Black Dark"
[11] S.A. wrote the poem "Black Dark" after the alleged sexual assault of February 11, 2006, but told no one about the alleged assaults until five months after the second alleged assault had occurred. S.A. acknowledged that "Black Dark" contained no explicit reference to J.M.H., sexual intercourse, or the events or date of February 11, 2006. The poem was written as fact, however, not as her interpretation of events, although the poem itself, she conceded, was open to interpretation.
[12] S.A. was cross-examined on some aspects of "Black Dark", but neither party tendered it as an exhibit during her testimony. [page764]
"Black Dark" becomes an exhibit
[13] The prosecutor called J.A. as the second prosecution witness. Trial counsel for the respondent objected on the ground that J.A. had no relevant evidence to give. Despite the objection, trial counsel appears to have acquiesced in the witness giving evidence, subject to arguments later about the relevance of her testimony.
[14] J.A. confirmed that she and S.A. had stayed overnight at J.M.H.'s house on one occasion sometime during the first two weeks of February 2006. J.A. fell asleep on a couch in the living room. When she awoke the following morning, S.A. was in J.M.H.'s bedroom. The two sisters left together. S.A. said nothing about anything unusual having happened the previous evening.
[15] J.A. read "Black Dark" in September 2006, on the allpoetry.com website. She confirmed that the poem shown to her by the prosecutor during examination-in-chief was the poem she had read. After re-reading the poem a few times, J.A. concluded that "something had happened" and discussed it with S.A. The poem was entered and filed as an exhibit at trial.
[16] The prosecutor explained that she was offering the poem as part of the narrative of S.A.'s complaint and to rebut the position advanced on J.M.H.'s behalf that the complainant's conduct after the alleged offence, in particular her continued association with J.M.H. and her failure to complain, diminished her credibility and, equally, the reliability of her account. The prosecutor made it clear that she was not tendering the poem to establish the proof of its contents.
The submissions of trial counsel
[17] In their final submissions to the trial judge, counsel discussed the use the trial judge should make of the poem, "Black Dark", in deciding the case.
[18] Trial counsel for the respondent urged the trial judge to give no weight to the poem. "Black Dark" made no specific reference to J.M.H. or to the events of February 11, 2006. Like all poetry, "Black Dark" was "subject to interpretation" and should be given an interpretation that was most favourable to the respondent.
[19] The prosecutor contended that the poem supported S.A.'s version of the events of February 11, 2006. Its composition was contemporaneous with those events and accurately recounted them in poetic form. [page765]
The reasons of the trial judge
[20] The trial judge accepted, without hesitation, S.A.'s evidence that the respondent had sexual intercourse with her on February 11, 2006, and again on May 20, 2006. He rejected and was left in no reasonable doubt by the respondent's denials.
[21] The trial judge then turned to the issue of consent. He accepted that S.A. had written the poem, "Black Dark", the day following the events of February 11, 2006, as a result of those events and as an outlet for what had occurred. He did not consider S.A.'s delay in reporting either occurrence to be a factor telling against the veracity of her account.
[22] The trial judge focused on two passages in the poem in concluding that the prosecutor had failed to prove that sexual intercourse took place without S.A.'s consent:
When I read her description of the incidents on February 11th, concerns are raised. She describes the incident on February 11th as:
"First taste So bittersweet"
Why?
"First taste So bittersweet"
Hardly the words that describe a rape. Hardly the words that describe an incident that is so damaging to her that she cannot cope with it. But she doesn't end there. She says,
"Evil invading Her body. It's too late Regret"
"Regret"? "Regret" conjures an image of someone who has made a decision and wishes she had not made it. "Regret". Why should she regret if she has been raped? Why should she regret if she has been violated? And why did she insist in going back to the same bed that she had been violated in? She may be young, but she is 17.
I suspect very strongly, when I read her poem, "First taste so bittersweet", that she was confused, that she wrestled with going into that room. She said she went to the bed on her own and it wasn't even discussed. Why? She is a bright, young women, very articulate. She is a very good writer. She expresses herself exceedingly clearly. And she insists that alcohol did not cloud her memory. It clearly did not cloud her ability to make decisions.
[23] The trial judge concluded:
In all of the circumstances of this case, notwithstanding that I do not believe the accused, notwithstanding that I am satisfied that sexual intercourse did occur on both of these occasions, I cannot be satisfied that she was sexually assaulted without her consent. I am satisfied that she regretted that what [page766] had happened, that she found it "bittersweet". Strange words for someone who testifies of violence that occurred to her. It is more in keeping with experimentation, more in keeping with taking a chance, more in keeping with growing up as a young person and making a mistake.
The Grounds of Appeal
[24] In her notice of appeal, Crown counsel alleged that the trial judge made two errors of law: (1) he misapprehended the evidence, including, but not only, the poem "Black Dark"; and (2) he failed to apply the correct standard of reasonable doubt.
[25] In oral argument, Ms. Campbell contended that the legal error made by the trial judge was that he considered two portions of the poem in isolation, rather than in the context of and together with the balance of the evidence, including the balance of the poem. Upon proper consideration, the verdict rendered would not necessarily have been the same.
[26] Based on my ultimate conclusion on the first issue, it is unnecessary to consider the second allegation of error as a distinct ground of appeal.
Analysis
[27] The essence of the appellant's complaint is that the trial judge misused the poem written by S.A. to ground his finding that the prosecution had not proven beyond a reasonable doubt that the sexual intercourse between the respondent and S.A. was without S.A.'s consent.
[28] The nature of the error alleged and the circumstances in which it arises require consideration of several related issues including, but not limited to, whether, as framed, the ground advanced raises a question of law alone and, if it does, whether Crown counsel has satisfied the onus required for this court to order a new trial.
The positions of the parties on appeal
[29] Ms. Campbell for the appellant says that the trial judge erred in his approach to the evidence relating to the issue of non-consent. The trial judge was required to consider all the evidence relevant to the one material issue that remained after he had found that the respondent had had sexual intercourse with S.A.: non-consent. Instead, the trial judge focused on two passages in the poem, "Black Dark", an item of evidence that had been admitted for a limited purpose. He treated the poem as if it [page767] had been received as a prior inconsistent statement and held that it raised a reasonable doubt about S.A.'s denial of consent. In effect, speculation became a surrogate for reasonable doubt. But for these errors, which combined speculation and misapprehension of evidence, the verdict would not necessarily have been the same.
[30] For the respondent, Mr. Feldmann submits that, in the absence of any shift in the burden of proof to an accused, of which none exists here, there is always evidence on which to make a finding favourable to an accused. Such a finding, if in error, the authorities establish, is an error of fact, not an error of law cognizable on an appeal by the Crown under s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.
[31] Mr. Feldmann characterizes the appellant's complaint as one that relates not to speculation, but rather to the weight that the trial judge assigned to an item of evidence. Errors in weighing evidence are not errors of law. What is more, even if the trial judge erred in law by treating or interpreting the poem as a prior inconsistent statement by S.A., thus a factor in assessing her credibility, it was simply one of several factors that raised a reasonable doubt about the denial of consent. Even on this view, the appellant has failed to show that the verdict would not necessarily have been the same had the error not been made.
The governing principles
The question of law requirement
[32] In proceedings by indictment, Crown appeals from acquittals entered by trial courts are restricted to grounds of appeal that involve questions of law alone: Criminal Code, s. 676(1)(a). In the absence of an all-encompassing definition or exhaustive list of what constitutes a question of law alone, the grounds advanced in individual cases require careful scrutiny to determine whether they fall within or lie beyond the restrictions imposed by s. 676(1)(a).
Admissibility and assessment of evidence as questions of law alone
[33] It is well-settled that the admissibility of evidence is a question of law: R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57, at p. 71 S.C.R. What appears less clear is the extent to which the assessment of properly admissible evidence in a particular case also raises a question of law alone, thus is cognizable on appeals from acquittal under s. 676(1)(a). [page768]
[34] A misapprehension of evidence may involve a failure to consider evidence relevant to a material issue, a mistake about the substance of the evidence or a failure to assign proper effect to the evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at p. 538 O.R. To determine in any given case whether a particular misapprehension of evidence amounts to an error of law alone is a question that is not entirely unencumbered with difficulty: Morrissey, at p. 538 O.R.
[35] The Crown is not entitled to contest an acquittal on the ground that the acquittal is unreasonable or not supported by the evidence. Sections 686(1)(a)(i) and (ii) clearly distinguish between unreasonable and unsupportable verdicts, on the one hand, and wrong decisions on questions of law, on the other. Implicit in the dispositive authority enacted by s. 686(1)(a) is the correlative right of a person convicted of an indictable offence to challenge the conviction on the ground of unreasonableness. No such authority is furnished to the Crown or court on appeals from acquittal: R. v. Sunbeam Corp., 1968 CanLII 33 (SCC), [1969] S.C.R. 221, [1968] S.C.J. No. 94, at pp. 237-38 S.C.R.; B. (G.), at pp. 67-68 S.C.R.
[36] A trial judge must take a legally correct approach to the evidence in a case, lest the final step in the process of adjudication, weighing the evidence, be flawed: B. (G.), at p. 77 S.C.R. As a necessary corollary to the proposition just stated, an erroneous approach to or treatment of the evidence adduced at trial constitutes legal error: B. (G.), at p. 71 S.C.R.; see, also, R. v. Wild, 1970 CanLII 148 (SCC), [1971] S.C.R. 101, [1970] S.C.J. No. 69, at pp. 111-12 S.C.R. It is equally wrong to ground a reasonable doubt on pure conjecture: see Wild, at p. 117 S.C.R. Misapprehension or lack of appreciation of relevant evidence only amounts to legal error where there is a self-misdirection by the trial judge on the applicable legal principles: B. (G.), at p. 75 S.C.R. On appeals from acquittal, it is more difficult to establish with certainty that the error raises a question of law alone because of the Crown's burden of proof and the enhanced importance of examining critically all evidence that may raise a reasonable doubt: B. (G.), at p. 75 S.C.R.
[37] A trial judge's failure to direct her or himself to all the evidence relevant to a material issue may amount to legal error: B. (G.), at p. 72 S.C.R. It is also legally wrong for a trial judge to fail to consider individual items of evidence in the context of the evidence as a whole; in other words, it is wrong to use a piecemeal approach, extracting individual items from their evidentiary surroundings: see B. (G.), at p. 77 S.C.R. It is all the more so where the individual items are subjected to the standard of proof required of the evidence as a whole: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, at p. 359 S.C.R. [page769]
[38] As a general rule, findings of fact made in the absence of any supportive evidence are errors of law: R. v. Schuldt, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76, at p. 604 S.C.R. Where the finding of fact made in the absence of evidence is an acquittal, however, an error of law occurs only where there has been a transfer to the accused by law of the burden of proving a particular fact: Schuldt, at p. 604 S.C.R.
Poems as evidence in criminal cases
[39] Sometimes, a party may seek to make use of a poem during the course of a criminal prosecution. The purpose for which the party may seek to use the poem may vary. A poem may constitute the means by which the Crown alleges an offence has been committed, as it did in R. v. Batista, [2008] O.J. No. 4788, 2008 ONCA 804. A poem found among an accused's possessions may be offered in evidence as an admission to help establish the accused's liability: R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207, [1996] S.C.J. No. 62, at paras. 29-30. In these circumstances, the poem is usually tendered as an exhibit in written form, its authorship or custody established by various witnesses.
[40] The law of evidence accords no special place for poems. No unique rule applies. As with other items of evidence received for substantive purposes, a poem tendered for reception must be relevant, material and not in contravention of any applicable admissibility rule. As with other items of evidence, a poem may also be of limited admissibility: admissible for one purpose or in relation to one accused, but not for or in relation to another purpose or accused. Poems, like other items of evidence of limited admissibility, must be confined to the use the adjective law permits.
[41] In some instances, a poem might be used to refresh memory, as a prior inconsistent statement to impeach the credibility of its author, or as a prior consistent statement to rebut an allegation of recent fabrication. In none of these examples would the poem become evidence of the truth of its contents (apart from adoption in the case of its use as a prior inconsistent statement). Nor would the poem become an exhibit in the proceedings. Substantive use of a poem as a prior out-of-court statement of the poet/declarant would require satisfaction of the principles of necessity and reliability.
The test applicable to appeals from acquittal
[42] The Criminal Code demands more of the Crown on an appeal from an acquittal in indictable proceedings than mere demonstration of a legal error by the trial judge in the conduct of those proceedings. What is more is a demonstrated nexus [page770] between the legal error and the judgment or verdict of acquittal: see R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, at para. 17. The Crown must satisfy the appellate court that the legal errors might reasonably be thought, in the concrete reality of the case under consideration, to have had a material bearing on the acquittal: Graveline, at para. 14.
[43] Appellate courts do not lightly overturn acquittals: R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, [2000] S.C.J. No. 53, at para. 2. The onus imposed on the Crown is a heavy one, although it does not extend to persuasion of the appellate court that the verdict would necessarily have been different: Graveline, at para. 14. What the Crown must establish, with a reasonable degree of certainty, is that the verdict would not necessarily have been the same had the errors not been made: Morin, at p. 374 S.C.R.; Graveline, at para. 16; Sutton, at para. 2; R. v. Vézeau, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, at p. 292 S.C.R.
The principles applied
Introduction
[44] In order to establish the respondent's guilt of the offences charged, the prosecutor had to prove beyond a reasonable doubt: (i) that the respondent intentionally applied force to S.A.; (ii) that S.A. did not consent to the force that the respondent intentionally applied; (iii) that the respondent knew that S.A. did not consent to the force that the respondent intentionally applied; and (iv) that the force that the respondent intentionally applied to S.A. took place in circumstances of a sexual nature.
[45] The trial judge was satisfied beyond a reasonable doubt that on both dates described in the indictment, the respondent had sexual intercourse with S.A. The trial judge accepted, without hesitation, S.A.'s evidence that sexual intercourse took place. He did not accept or have a reasonable doubt about the respondent's denials of any sexual contact.
[46] Despite his acceptance of S.A.'s testimony that the respondent had sexual intercourse with her, the trial judge had a reasonable doubt whether the intercourse took place without S.A.'s consent. What ripens for decision here is whether this finding was flawed by legal error, in particular the trial judge's apparent conscription of the poem, "Black Dark", to ground his conclusion. [page771]
[47] It is helpful to begin the discussion with an evaluation of the circumstances in which the poem made its way into evidence at trial.
The poem as evidence
[48] It was uncontested at trial that S.A. wrote the poem, "Black Dark", and posted it on a website to which she subscribed. The trial judge found that the poem was inspired by and referred to the incident of February 11, 2006. It was written within one day of the incident.
[49] S.A. was cross-examined on some of the contents of the poem. Portions of the poem seemed to have been used to impeach S.A. on the basis that it contained no specifics to link its contents to S.A.'s claim of an uninvited and non-consensual sexual attack on February 11, 2006. The cross-examiner did not tender a copy of the poem to S.A. or seek its admission as an exhibit during her testimony.
[50] When J.A. testified, she confirmed an overnight stay at the respondent's home and S.A.'s emergence from the respondent's bedroom the next morning. The prosecutor produced a copy of the poem to J.A., who confirmed that she had read it several times on the allpoetry.com website in September 2006. J.A. knew that S.A. was the author of the poem and concluded from the poem's contents that something bad had happened to S.A. sometime earlier. J.A. then discussed the poem with S.A. and learned of the alleged sexual assault by the respondent.
[51] The prosecutor tendered a copy of the poem as an exhibit during examination-in-chief of J.A. The announced purpose of its introduction was as part of the narrative of S.A.'s complaint, in particular to diminish the force of the respondent's claim that S.A.'s failure to complain and other conduct following the first incident told against her credibility and the reliability of her account. The prosecutor made it clear that she was not tendering a poem to establish the truth of its contents.
[52] It is clear from the evidence of both S.A. and J.A. that "Black Dark", like other poems, is subject to interpretation. It could mean different things to different people. The prosecutor invited the trial judge to use "Black Dark", contrary to the basis on which she had proposed its admission, to support S.A.'s account of forced sexual intercourse on February 11, 2006.
The decision on absence of consent
[53] The trial judge turned his attention to the requirement that the prosecutor prove beyond a reasonable doubt that S.A. "was sexually assaulted on February 11 and May 20, and it was [page772] without her consent". He opened his discussion of the adequacy of the prosecutor's proof with four findings of fact relating to "Black Dark": (i) that the poem was written as a result of S.A.'s experience with the respondent on February 11, 2006; (ii) that the poem was written very soon after the incident, perhaps the following day; (iii) that the poem described the incident of February 11, 2006; and (iv) that the poem was written as an outlet.
[54] The trial judge quoted the poem in its entirety, then made it clear that S.A.'s delay in making complaint about the offence charged was of no significance in determining whether the sexual intercourse with the respondent had taken place without S.A.'s consent. In other words, the delay in reporting did not raise or contribute to a reasonable doubt that the intercourse was without S.A.'s consent.
[55] The trial judge then turned to S.A.'s "description of the incidents on February 11th", as recounted in "Black Dark", and noted that "concerns are raised". The judge concluded that two passages in the poem were incompatible with non-consensual intercourse, especially when coupled with S.A.'s return to the same bed in which she had been violated.
[56] The reasons of the trial judge make no reference to the sworn testimony of S.A. given at trial.
Was there an error?
[57] In my respectful view, the trial judge erred in the approach he took to the evidence that was relevant to the consent/non-consent issue.
[58] It was for the prosecutor to establish beyond a reasonable doubt that S.A. did not consent to the respondent's conduct that culminated in acts of sexual intercourse on February 11 and May 20, 2006. The determination of that issue required the trial judge to consider the cumulative effect of all the evidence that was relevant to that inquiry. The prosecutor was entitled to a determination of this essential element of her proof on a full, not partial evidentiary predicate.
[59] In sexual assault prosecutions, consent refers to the complainant's state of mind. Consent means the voluntary agreement of the complainant to engage in the sexual activity in issue. Consent is situational: the voluntary agreement of S.A. [page773] that the respondent do what he did, in the way and at the time he did it. And whether consent was provided or denied fell to be decided on all the evidence about the circumstances surrounding the sexual activity in issue.
[60] The testimony of S.A. provided the only direct evidence on the consent/non-consent issue. S.A. also testified about the circumstances that preceded and followed each act of intercourse as well as about her return to the respondent's home on various occasions between and after the incidents. The respondent denied any sexual activity with S.A. at any time.
[61] In light of S.A.'s testimony that the poem was written shortly after and was a factual account of the events of February 11, 2006, it was open to the trial judge to consider its impact on the credibility of S.A. and the reliability of her account of those events. But the poem had to be considered as a whole and in the context of S.A.'s sworn testimony of non-consensual sexual activity, in particular, forced sexual intercourse. To ensure that the final step in the adjudicative process, the weighing of the evidence on the consent/non-consent issue, was not flawed, the trial judge was required to take the proper approach to the poem as evidence.
[62] It was open to the trial judge to focus on specific passages in the poem in deciding the consent/non-consent issue. What the trial judge was required but failed to do was to put those passages in their proper context of the poem as a whole and of S.A.'s sworn testimony. The trial judge had accepted S.A.'s evidence that sexual intercourse had taken place, but never mentioned her testimony on the consent/non-consent issue, or said why he rejected it, apart from his reference to various isolated words in the poem on which S.A. was never questioned.
[63] The trial judge appears to have used the poem about the events of February 11, 2006 to support his finding on the consent/non-consent issue in connection with the allegation of May 20, 2006. I am unable to discern on what basis the poem had any value as a credibility or reliability factor in connection with the later incident.
[64] I am satisfied that the trial judge erred in his determination of the consent/non-consent issue in connection with both counts in the indictment. His piecemeal approach to isolated words in the poem was incompatible with his obligation to consider the poem as a whole, and together with the rest of the evidence on the issue.
Was the error an error of law?
[65] Without minimizing the difficulty in appeals from acquittal of establishing with certainty that a judicial error raises a [page774] question of law alone, I am satisfied that the errors made here in the trial judge's approach to the evidence on the consent/non-consent issue were errors of law.
[66] In B. (G.), the Supreme Court of Canada recognized appellate jurisdiction where the question of law originated from the trial judge's conclusion that she or he is not convinced of an accused's guilt because of an erroneous approach to, or treatment of the evidence adduced at trial: B. (G.), at p. 71 S.C.R.
[67] The trial judge here failed to direct himself to all the evidence bearing on the issue of consent/non-consent, including both the balance of the poem and the central evidence of S.A.'s sworn testimony denying consent and describing the circumstances in which the sexual activity occurred. Further, consideration of the poem as dispositive of the consent/non-consent issue for the offence of May 20, 2006 constitutes legal error.
The verdict consequences of the legal errors
[68] Acquittals are not overturned upon demonstration of legal error without more. The Crown shoulders a heavy onus, one discharged only upon a showing, with a reasonable degree of certainty, that the verdict would not necessarily have been the same had the errors not occurred.
[69] Once the trial judge recorded his finding that on both February 11 and May 20, 2006, the respondent had sexual intercourse with S.A., consent became the critical issue. The respondent denied that any sexual activity had occurred, thus did not give evidence that S.A. consented to what occurred. To rebut the presumption of innocence, the prosecutor relied on the sworn testimony of S.A. denying consent, as well as the circumstances of the sexual activity as she described them. The prosecutor was entitled to a legally correct approach to and treatment of the evidence on the consent/non-consent issue and to have all the evidence considered cumulatively. What the prosecutor got was a piecemeal approach to a single item of evidence, a poem, introduced for a limited purpose as part of the narrative of the complaint.
[70] The trial judge did consider other aspects of S.A.'s conduct in his discussion of the consent/non-consent issue: her return to the same bed after sexual intercourse on February 11, 2006, then again on May 20, 2006; the effect of her consumption of alcohol on February 11, 2006; the inconsistencies between the versions of S.A. and J.A. about the events of the morning following the February incident. But it was the isolated passages in the poem, particularly the references to "regret" and "bittersweet", that tilted the balance in favour of acquittal. [page775]
[71] After anxious consideration, I am unable to conclude that the verdict would necessarily have been the same without the erroneous approach to and treatment of the poem as evidence by the trial judge.
Conclusion
[72] For these reasons, I would allow the appeal, set aside the acquittals and order a new trial on both counts of the indictment.
Appeal allowed.