WARNING

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.S., 2012 ONCA 684

DATE: 20121011

DOCKET: C53510

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. S.

Appellant

Mark J. Sandler, for the appellant

Kim Crosbie, for the respondent

Heard: April 2, 2012

On appeal from a conviction entered by Justice Paul F. Lalonde of the Superior Court of Justice, sitting with a jury, on November 17, 2010.

Watt J.A.:

[1] Early one New Year’s morning a woman, fully clothed, was asleep on the basement couch. A man put his hand on her hip, then under her clothes approaching her vaginal area. The man began kissing the woman. Neither spoke.

[2] The woman thought the man was her husband. She was wrong. She opened her eyes in the darkened room but saw nobody.

[3] A jury decided that the man was J.S. (the appellant). They also found that the woman (the complainant) did not consent to what the appellant did and that the appellant did not honestly believe that the complainant did consent. The jury concluded that the appellant was guilty of sexual assault.

[4] The appellant says that his conviction is flawed because the trial judge made several mistakes in his final instructions to the jury. These reasons explain why I have concluded that the judge’s final instructions were so deficient that the appellant should have another trial.

THE BACKGROUND FACTS

[5] A brief overview of the circumstances that underpinned this prosecution is sufficient for our purposes.

The Complainant’s Account

[6] The complainant and her common law spouse went to a house party at the house of the appellant’s parents. They left their young child in the care of the complainant’s mother because they planned to stay overnight. The complainant, then 22 years old and a habitual marijuana user, brought a bottle of liqueur, some marijuana, some marijuana cookies and another drug, salvia, to the party.

[7] The complainant admitted that she was “very highly intoxicated” when she retired to a basement couch shortly after 2:30 a.m. on New Year’s day. Sometime later, she felt a hand on her hip, which then slid under her sweatpants towards her vaginal area, before she was French kissed.

[8] The complainant thought the person kissing her was her husband so she responded in kind. But when she put her hand on the back of the man’s head, she realized this man was not her husband. She looked around but did not move from the couch. She saw no one, rolled over, and went back to sleep.

[9] When the complainant woke up a few hours later, her pants were damp and their crotch bloodstained. She removed them and put them in a bag. When she went upstairs, her common law husband and his friend noticed “hickies” on the complainant’s neck. Pressed further by her common law husband about the origin of the hickies, the complainant told him about the kissing incident and her damp panties.

[10] In the end, the complainant’s common law husband took her to the hospital where she was examined by a doctor. The doctor noticed a mark that could have been a bite mark on the complainant’s left nipple. The doctor called the police.

The Appellant’s Version

[11] The appellant testified. He said that he sat in a lazy boy chair near the complainant in the basement. He wanted to watch television and planned to sleep on a nearby air mattress with his girlfriend when the television show ended. The television was near the complainant so he asked her whether it was okay for him to watch it. She agreed.

[12] While the appellant was watching television, the complainant motioned over towards her. He leaned closer and made eye contact with her. They began to kiss. The kissing intensified. He slowly slid his hands under her pants, then moved them towards her vagina. They fondled each other before the appellant performed oral sex on the complainant. Both climaxed. At every step, the appellant asked whether it was “okay” for him to do what he was doing. At every step, the complainant agreed.

The Forensic Evidence

[13] A few years later, police retrieved a cigarette butt discarded by the appellant. Forensic testing followed. The appellant’s DNA was found in saliva obtained in swabs of the complainant’s neck and nipple taken when she had gone to the hospital to report what had happened to her. The appellant’s DNA was also found in semen detected on the complainant’s external genitalia and on her pants.

[14] The appellant was arrested about three and one-half years after the conduct that grounded his prosecution.

the grounds of appeal

[15] The appellant seeks a new trial on four grounds. Each alleges an error in the trial judge’s charge to the jury. As I would paraphrase the appellant’s complaints, they are that the trial judge erred in:

i. failing to instruct the jury on the position of the defence and to relate the salient features of the evidence to that position;

ii. improperly instructing the jury on the onus of proof on consent;

iii. failing to define “wilful blindness” and to describe its relationship with apprehended consent[^1]; and

iv. instructing the jury about the kinds of circumstances that could vitiate the complainant’s consent when there was no evidence of such circumstances in this case.

Ground #1: The Position of the Defence

[16] The background that underlies this ground of appeal requires a brief canvass of the positions advanced by the parties at trial followed by an abridged reference to the final instructions of the trial judge.

The Positions of the Parties at Trial

[17] The Crown contended that the complainant’s account was a faithful replication of the events that occurred on the basement couch early on New Year’s morning, 2005. She did not see her attacker, and thus could not identify him, but the scientific evidence confirms that it was the appellant. She did not consent to the appellant’s sexual advances and, in any event, was too intoxicated to have the capacity to give her consent. According to the Crown at trial (who is not counsel on appeal), the complainant did nothing that would have led the appellant to honestly believe that she was consenting to his advances, nor did he honestly entertain any such belief.

[18] Counsel for the appellant at trial (who is also not counsel on appeal) underscored the frailties in the evidence of the complainant and the capacity of her testimony to discharge the burden of proof imposed upon the Crown. He urged jurors to accept, or at least to have a reasonable doubt about, the complainant’s consent or the appellant’s honest belief in her consent on the basis of the appellant’s account of what happened.

The Charge to the Jury

[19] The trial judge provided counsel with a copy of the final instructions he proposed to give the jury and solicited their views about the adequacy and correctness of those instructions.

[20] Towards the beginning of his final instructions, which he provided in written form to the jury, the trial judge indicated that, among the subjects he would discuss with them were the issues that required their decision and the significant features of the evidence that related to those issues. He also said he would summarize the positions advanced by counsel at trial.

[21] The trial judge told the jury about the essential elements of sexual assault, then, in accordance with the approach set out in the Ontario Specimen Jury Instructions (Criminal), converted each essential element into a question for jurors to answer. For each question, the trial judge explained the legal principles that govern the jury’s decision on the question, reviewed various features of the evidence that were relevant to their decision, and concluded with a statement about the available responses to the question and the consequences of those responses for further deliberations and verdict.

[22] The second element of sexual assault that the trial judge discussed was consent. He instructed jurors about the meaning of consent and of the Crown’s obligation to prove beyond a reasonable doubt that the complainant had not consented to the sexual activity she described. Among other things, the trial judge said:

Defence counsel suggested to her that she had consented to the sexual activity and she replied that the suggestion was wrong. It is the Crown’s position that she could not consent due to her state of intoxication.

[The appellant], on the other hand, maintained that he had an honest belief that [the complainant] had consented to the sexual activity that he had with her as she had motioned him to leave his chair to come to the couch where she was stretched out. His evidence was that she reciprocated with the kissing and the masturbating until both of them had reached a climax. [The appellant’s] honest belief will be analysed more fully in the next question if you find that [the complainant] did not consent to the sexual activity. The defence position is that [the complainant] had consented to the activity.

[23] The third element of sexual assault on which the trial judge instructed the jury involved the related subjects of the fault element in sexual assault and the issue of apprehended consent. The trial judge told the jury that the Crown could prove that the appellant knew that the complainant was not consenting to the sexual activity by proving actual knowledge, recklessness, or wilful blindness, although the judge did not use the actual terms “recklessness” or “wilful blindness” in this part of his instructions. The judge made it clear that it was for the “Crown” to prove beyond a reasonable doubt that the appellant did not honestly believe the complainant was consenting to his conduct.

[24] On the issue of apprehended consent, the trial judge reviewed in detail the evidence that he thought relevant for the jury’s consideration, including the evidence of the appellant, and concluded:

If you have a reasonable doubt whether [the appellant] honestly believed that [the complainant] voluntarily agreed to participate in the sexual activity with which [the appellant] is charged, you must find [the appellant] not guilty and your deliberations would be over.

If you are satisfied beyond a reasonable doubt that [the appellant] did not honestly believe that [the complainant] voluntarily agreed to participate in the sexual activity with which [the appellant] is charged, you must go on to the next question.

[25] The instruction contains no discrete statement of the position of either party on the issue.

The Arguments on Appeal

[26] For the appellant, Mr. Sandler says that, despite his early promise to do so, the trial judge never did summarize the position advanced by trial counsel in his closing address. Mr. Sandler acknowledges that jury instructions need not adhere to a specific formula. On the other hand, he submits, final instructions must state the position of the defence, review the substantial parts of the evidence supportive of that position, and relate that evidence to the defence position so that the jury can appreciate its value and effect. The instruction, read as a whole, fails to meet this standard.

[27] Mr. Sandler says the defence advanced at trial was that the complainant consented to the sexual activity that admittedly occurred. This position garnered evidentiary support from the detailed testimony of the appellant whose evidence was credible and reliable, unlike that of the complainant that was inherently problematic and deeply flawed. The complainant’s consent, according to the appellant, was not vitiated by her state of intoxication.

[28] Trial counsel also advanced apprehended consent, which emerged from the appellant’s testimony, in the event the jury found that the complainant did not consent or lacked the capacity to consent because of intoxication.

[29] In the end, Mr. Sandler says, the trial judge never adequately instructed the jury on the position of the defence or told them why the defence contended that they should reject the complainant’s evidence. The trial judge’s serial summary of the evidence in connection with apprehended consent did not assist the jury’s appreciation of the value and effect of the evidence on the issue of consent, which the trial judge conflated with apprehended consent.

[30] For the respondent, Ms. Crosbie urges us to take a functional approach in our assessment of the adequacy of the judge’s final instructions. The overall question she says is whether, considered as a whole, the final instructions left the jury with an adequate understanding of the issues raised, the legal principles governing the jury’s decision on those issues and the evidence relevant for their consideration. She submits that the instructions, considered as a whole, achieved their purpose.

[31] Ms. Crosbie says that the positions advanced at trial were straightforward, the evidence uncomplicated. The Crown said the complainant didn’t consent whether because of her intoxicated state or otherwise. The defence was that she consented, or the appellant honestly believed that she had consented.

[32] Ms. Crosbie submits that the trial judge properly explained the elements of consent to the jury and reviewed the appellant’s evidence supportive of the defence, leaving it to the jury to determine whether the Crown had proven beyond a reasonable doubt that the complainant did not consent. The evidence was reviewed more fully in connection with apprehended consent but enough was said in connection with each to ensure that the jury appreciated the nature and effect of the evidence.

[33] Ms. Crosbie reminds us that trial counsel for the appellant made no objection to the charge on the basis now said to reflect fatal error. The failure to object is of greater significance in this case, not only because of the nature of the complaint – the failure to put the defence – but also because counsel had been provided with the instructions in advance and had ample opportunity to object had he considered them inadequate or unfair.

The Governing Principles

[34] Several well-established principles inform and guide our decision in connection with this ground of appeal.

[35] First, a trial judge presiding in a jury trial is required, except in cases where it would be needless to do so, to review the substantial parts of the evidence and give the jury the position of the defence, so that, in the end, the jury can appreciate the value and effect of that evidence: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498; R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at p. 385. Proper instructions leave the jury with a sufficient understanding of the facts as those facts relate to the issues the jury has to decide: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p.163.

[36] Second, we test the adequacy of jury instructions against their ability to fulfill the purpose for which instructions are provided. We do not test them to determine whether or to what extent they adhere to or depart from some particular approach or specific formula: Jacquard, at para. 62; MacKinnon, at p. 386. In the end, the jury must understand:

i. the factual issues to be determined;

ii. the legal principles applicable to the issues and the

evidence adduced at trial;

iii. the positions of the parties; and

iv. the substantial parts of the evidence relevant to the positions of the parties on the issues to be decided.

[37] Third, it is the substance, not the form of final instructions that determines whether those instructions have satisfied or fallen short of what we require of them. Yet a sound, organized approach to those instructions is more likely to produce a satisfactory and legally sustainable result: MacKinnon, at p. 386.

[38] Fourth, a trial judge frequently relates the evidence relevant to the positions of the parties on the controversial issues by reviewing the substance of the evidence that bears upon each issue and indicating to the jury what parts of the evidence may support each party’s position. Describing the substance of the evidence does not require a regurgitation of every syllable spoken by any or every witness. Rather, it calls for a measured approach that pares to the evidentiary core of the case, for and against, on the issue under discussion: MacKinnon, at pp. 386-387. Evidence reviewed once need not be reviewed twice, provided the instructions make it clear that the same evidence may be of service in the resolution of more than one issue: Jacquard, at para. 14.

[39] Fifth, the closing address of counsel does not relieve the trial judge of the obligation to ensure that the jury is aware of the substance and understands the significance of the evidence to the critical issues in the case. However, a trial judge can take into account the closing addresses of counsel in deciding how to discharge his or her obligation to review and relate the evidence to the relevant issues. A trial judge may refer to, or incorporate by reference, counsel’s submissions to assist in relating the evidence to the positions of the parties on the issues in controversy: MacKinnon, at p. 387.

[40] Finally, where counsel receive a copy of the proposed final instructions in advance of delivery, are invited to make submissions about errors and omissions, but voice none and acquiesce in what will be said, the failure to object must be accorded considerable weight when it is later said that the instructions have failed to adequately and fairly present the position of the appellant: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at paras. 89, 96-97. On the other hand, where the cumulative effect of several errors is to deprive an appellant of a fair trial, the failure of trial counsel to object is not determinative on appeal.

The Principles Applied

[41] I would give effect to this ground of appeal, although I regard this case as close to the line because of its straightforward nature and uncomplicated evidence.

[42] The trial judge’s instructions followed the approach suggested in the Ontario Specimen Jury Instructions (Criminal). That approach includes:

i. a summary of the essential elements of the offence;

ii. a conversion of each essential element into a question for the jurors to consider and answer;

iii. instructions on the legal principles[^2] that govern the jury’s decision on the question derived from each essential element;

iv. a review of the salient features of the evidence that bear upon each question and a relation of those features to the positions of the parties on the issue; and

v. a concluding instruction that apprises the jurors of the consequences of their decision on each question for further deliberations and verdict.

[43] Setting aside for the moment the correctness and adequacy of the trial judge’s legal instructions on the essential elements of the offence and the defences of consent and apprehended consent, the trial judge appears not to have expressly instructed the jurors on the position of the defence. Instead, he simply recounted parts of the evidence without much, if any, reference to the points made in cross-examination of the complainant. Nor did the trial judge relate the evidence to the relevant essential element or related defence.

[44] Second, his instructions on the issue of consent conflated actual and apprehended consent. As a result, the jury were not clearly told, as they should have been, that the appellant’s defence was that the complainant consented to the sexual activity (the actual consent not undone by her intoxicated state) not just that the appellant honestly believed that she consented.

[45] Third, the trial judge’s evidentiary review did not refer to evidence elicited in cross-examination that supported the defence position that, unaffected by intoxication, the complainant’s account of lack of consent was inherently suspect and implausible.

[46] The effect of these errors on the outcome of the appeal can await assessment of the other alleged deficiencies in the final instructions.

Ground #2: Instructions on Burden of Proof on Consent

[47] This ground of appeal requires a brief reference to several passages in the trial judge’s final instructions on the issue of consent.

The Jury Instructions

[48] In his summary of the essential elements of sexual assault, the trial judge instructed the jury that Crown counsel had to prove beyond a reasonable doubt not only that the complainant did not consent to the force the appellant intentionally applied to her, but also that the appellant did not honestly believe that the complainant consented to the application of that force.

[49] After he explained the meaning of consent and the circumstances in which consent could be vitiated, the trial judge left the consent issue to the jury in these terms:

If you have a reasonable doubt whether [the complainant] consented to the force that [the appellant] intentionally applied, you must find [the appellant] not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that [the complainant] did not consent to the force that [the appellant] intentionally applied, you might go on to the next question.

[50] The trial judge’s instructions on apprehended consent concluded in the same way:

If you have a reasonable doubt whether [the appellant] honestly believed that [the complainant] voluntarily agreed to participate in the sexual activity with which [the appellant] is charged, you must find [the appellant] not guilty and your deliberations would be over.

If you are satisfied beyond a reasonable doubt that [the appellant] did not honestly believe that [the complainant] voluntarily agreed to participate in the sexual activity with which [the appellant] is charged, you must go on to the next question.

The judge then added:

If you are satisfied beyond a reasonable doubt that [the complainant] did not consent to the force that [the appellant] intentionally applied, you must go on to the next question.

[51] As he approached the end of this charge, the trial judge advised the jury about the availability of a verdict. He explained:

You shall find, record and return a verdict of not guilty, the first verdict listed, if you are satisfied beyond a reasonable doubt that the complainant had consensual sex with the accused.

[52] The jury was not recharged on this issue.

The Arguments on Appeal

[53] For the appellant, Mr. Sandler says that the final instruction the jurors heard, an instruction that linked consent to a verdict of not guilty, constituted misdirection. The instruction shifted the onus of proof to the appellant and required him to prove beyond a reasonable doubt that the complainant had consensual sex with him before the jury could find him not guilty. A more prejudicial instruction could scarcely be imagined. This was the last instruction the jurors heard on the issue exacerbating the prejudice he created.

[54] Ms. Crosbie for the respondent acknowledges the misdirection. She reminds us to consider the instructions as a whole and submits that, in those circumstances, the jurors could not have been under any misapprehension about the burden of proving non-consent. She adds that trial counsel for the appellant made no objection to the charge on this issue, a factor that should weigh heavily against the claim of prejudice now being advanced.

The Governing Principles

[55] It is common ground that, in prosecutions for sexual assault, Crown counsel must prove beyond a reasonable doubt that the complainant did not consent to the activity that is the subject matter of the charge. Further, where apprehended consent is in play, Crown counsel must prove beyond a reasonable doubt that the accused did not honestly believe that the complainant was consenting to the relevant activity.

The Principles Applied

[56] I agree with the parties that the final passage in the trial judge’s instructions excerpted in paragraph 51 reflects error. An accused is under no obligation to prove that the complainant consented, much less an obligation to prove consent beyond a reasonable doubt. However, preliminary to an assessment of the cumulative effect of various errors in the final instructions on the integrity of the verdict reached at trial, something should be said about other parts of the charge on this and related issues.

[57] The only portion of the charge in which the trial judge erred in shifting the onus of proof about consent to the appellant is the passage in which the judge told the jury about the findings required to return a verdict of not guilty. Elsewhere, for example, in dealing with consent and apprehended consent in earlier portions of the charge in connection with the essential elements of the offence, the trial judge made it clear that Crown counsel was required to prove beyond a reasonable doubt, not only that the complainant had not consented, but also that the appellant did not honestly believe that she had consented.

[58] The charge to the jury included a W. (D.) instruction: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758. It attracted no objection from trial counsel who had the opportunity to review the charge in advance of its delivery, as well as to record any objections after the charge had been given.

Ground #3: The Instruction on Wilful Blindness

[59] This ground of appeal faults the trial judge for use of the term “wilful blindness” without an explanation for its meaning. The nature of the complaint requires brief reference to the trial judge’s final instructions, the arguments advanced about their adequacy, and the principles that inform our decision.

The Jury Instructions

[60] The third question posed by the trial judge for the jury’s determination was

Did [the appellant] honestly believe that [the complainant] consented?

[61] In his instructions about the legal principles the jury were to apply to answer this question, the trial judge explained that the Crown had to prove beyond a reasonable doubt that the appellant knew that the complainant did not consent to the force the appellant intentionally applied. The trial judge then focussed on proof of knowledge. He explained that knowledge could be proven on any of three bases:

• actual knowledge

• recklessness

• wilful blindness

The instructions explained recklessness and wilful blindness in legally correct language, but the trial judge did not use the specific terms “recklessness” or “wilful blindness” in his instructions.

[62] Later in his instructions on the same question, the trial judge, in explaining the relevance of reasonable grounds to the issue of apprehended consent, said:

Wilful blindness is inconsistent with an honestly held mistaken belief.

The term “wilful blindness” was never mentioned again.

The Arguments on Appeal

[63] For the appellant, Mr. Sandler submits that the trial judge erred in interjecting the term of art, “wilful blindness”, into his instructions without either explaining its meaning or linking it to the admittedly flawless instruction about its meaning he had given earlier. In the result, Mr. Sandler says, the jury were left to their own devices to define what the trial judge meant by this new term. There was nothing about the term that would permit the jury to intuit its meaning, thus they may have rejected apprehended consent on a legally erroneous ground.

[64] For the respondent, Ms. Crosbie contends that when the trial judge’s instructions are considered as a whole, the late stage inclusion of a term not mentioned otherwise in the instructions would not have confused the jury or caused them to reject apprehended consent on a basis too favourable to the Crown. The instructions explained, in language to which no objection was or could have been taken, the three bases upon which the Crown could prove that the appellant knew the complainant was not consenting to what he was doing. The later interjection of a term of art, about which no questions were asked, could not detract from the clear instructions given earlier.

The Governing Principles

[65] In R. v. Crampton (2004), 2004 CanLII 4770 (ON CA), 188 O.A.C. 357, the jury asked the judge to tell them the “major elements” in sexual assault. The judge explained that one of the elements was that the accused knew that the complainant did not consent to the force that the accused intentionally applied. The trial judge continued:

[K]new in the sense of actually knowing, or not actually knowing but being reckless about knowing, or wilful blindness, which means closing your eyes to the obvious.

The trial judge had previously instructed the jury in terms that explained both recklessness and wilful blindness but had not used either term to describe what he was talking about.

[66] The Crampton court decided that the judge erred in introducing terms of art in a re-charge without expressly defining those terms or, in connection with wilful blindness, fully defining the term: Crampton, at para. 11.

The Principles Applied

[67] I would give effect to this ground of appeal as a result of our earlier decision in Crampton. That said, the context here differs significantly from that in Crampton and diminishes the influence that the interjection of an undefined term of art may have had on the verdict. In assessing the overall effect of the error the following needs to be considered.

[68] The common failing in Crampton and in this case is the failure of the trial judge to define a term of art used in jury instructions. Neither Crampton, nor so far as I am aware any other authority, sponsors a bright line rule enjoining any and all mention of terms of art in mid-trial or final jury instructions. What the authority set their face against is not the use of terms of art per se, but, as here, unexplained or undefined use of such terms. Terms of art are often useful in jury instructions, for example, as compendious descriptives of evidence groupings or of issues to be decided. Provided their meaning is made clear, I see nothing wrong with their use.

[69] Any assessment of the potential impact of mention of “wilful blindness” in the closing portion of the charge requires consideration of several other factors.

[70] First, the reference occurred near the end of the charge. It was the first, last, and only reference to the subject by name. The substantive instructions on wilful blindness, given earlier, were complete and correct. The mere mention of the term did not detract from what had been said earlier or risk confusion by incompleteness as in Crampton.

[71] Second, counsel for the appellant at trial did not object to this instruction, either before delivery of the charge when provided with a draft version, or after its delivery.

[72] Third, the jury asked no questions about this or any related subject.

[73] Although these particular factors suggest that the use of a term of art may have had less of an impact in this case than it did in Crampton, I would nevertheless give effect to this ground of appeal.

Ground #4: The Instructions on Vitiated Consent

[74] The final ground of appeal takes issue with trial judge’s inclusion in his charge of instructions about conduct or circumstances that vitiate what otherwise appears to be consent to sexual activity.

The Jury Instructions

[75] The trial judge prepared a binder for the jury’s use during their deliberations. Included within the binder was the text of several Criminal Code provisions including the definition of “consent” in s. 273.1(1), the conduct or circumstances that vitiate consent in s. 273.1(2) and (3), and s. 273.2 that restricts the circumstances in which a claim of apprehended consent may be advanced. Apart from reading the statutory provisions, the trial judge did not instruct the jury further on their meaning or application as he turned to his prepared instructions.

[76] In his instructions on the second essential element of sexual assault, the absence of consent, the trial judge mentioned several factors that could vitiate consent:

• force

• threats

• fear

• fraud

• abuse of authority

The trial judge did not expand upon any of these vitiating factors all of which are listed in s. 265(3) of the Criminal Code made applicable to prosecutions for sexual assault by s. 265(2).

[77] The trial judge also instructed the jury that for any consent to be valid, the complainant must have been capable of consenting, not incapacitated by the consumption of alcohol or otherwise. On this issue, the judge said:

There cannot be a voluntary agreement unless the person who is said to agree, in this case, [the complainant], is capable of agreeing. [The complainant] must not be so intoxicated, or in any other type of mental state that renders her unable to understand the sexual nature of [the appellant’s] conduct. [The complainant] must be able to realize that she has the right to choose not to participate in sexual activity with [the appellant]. In other words, [the complainant] must be able to realize that she has the right to say “No” at any time.

The Arguments on Appeal

[78] For the appellant, Mr. Sandler says that the instructions contain several references to factors that vitiate consent, such as breach of trust, abuse of authority and abuse of power, that were unsupported by the evidence adduced at trial but were never withdrawn from the jury’s consideration. The jury might well have concluded that the complainant had not consented, for example, because the appellant abused the position of trust he held because the events took place in his parents’ house. Likewise, the reference to “force” as a vitiating factor may have influenced the decision in light of the discussion that only minimal force was required for conduct to constitute an assault.

[79] For the respondent, Ms. Crosbie points out that the instructions given about the factors that vitiate consent were legally correct. That the record was barren of any evidentiary support for any of these listed factors, apart from intoxication, would not have escaped the notice of the jurors who were told repeatedly to rest their findings on evidence and inferences not fantasy and speculation. No one relied on any vitiating factor apart from intoxication, nor was there any realistic prospect that the judge’s delineation of threats or his instruction about force on an uncontested issue would lead the jury astray.

The Governing Principles

[80] Trial judges are required to tailor their final instructions to the evidence adduced at trial, the legal principles that play in the case, and the positions advanced by the parties. Jury charges are tailor made, not off the rack. Inclusion of irrelevancies adds clutter and risks confusion.

The Principles Applied

[81] I would not give effect to this ground of appeal despite the inclusion of what I regard as unnecessary clutter in the final instructions.

[82] The positions advanced at trial were straightforward. The Crown said no consent, actual or apprehended. The only evidence summoned in support of vitiated consent was the complainant’s state of intoxication. The appellant claimed consent, that the complainant initiated closeness and, at every step, agreed to what the appellant was doing. At the very least, the appellant had a well-founded honest belief that the complainant consented to his advances.

[83] Second, to characterize as fatal error the inclusion of vitiating factors that had no support in the evidence betrays our faith in the good sense of jurors and their ability to decide cases on evidence, not speculation.

CONCLUSION

[84] The principal legal errors in this case include:

i. a failure to adequately instruct the jury on the position of the defence and to relate the essential features of the evidence supportive of the defence to the issues raised, so that the jury could appreciate its value and effect;

ii. a misdirection on the onus of proof on the issue of consent requiring the appellant to prove consent beyond a reasonable doubt; and

iii. an instruction that “wilful blindness” could vitiate apprehended consent without explaining, in terms or by referential incorporation of earlier instructions, what was meant by “wilful blindness”.

[85] Ms. Crosbie invited the application of the curative proviso of s. 686(1)(b)(iii) based in part on a submission that there was no air of reality to the claim of apprehended consent. The trial Crown took no objection to the inclusion of apprehended consent in the final instructions. I am satisfied the necessary evidentiary predicate existed for submission of apprehended consent to the jury.

[86] I would not apply the curative proviso to the cumulative effect of the legal errors in the final instructions to the jury in this case. Taken as a whole, and despite trial counsel’s failure to object to the instructions on the issues raised on appeal, the cumulative effect of the identified errors was to deprive the appellant of a just determination of the issues in play at trial.

[87] For these reasons, I would allow the appeal, quash the conviction, and order a new trial.

Released: October 11, 2012 “WW”

“David Watt J.A.”

“I agree Winkler C.J.O.”

“I agree John Laskin J.A.”

[^1]: I use the term “apprehended consent” as a compendious descriptive for “honest but mistaken belief in consent”.

[^2]: The principles include reference to any defence, justification or excuse that relates to the essential element.