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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Jorgge, 2013 ONCA 485

DATE: 20130718

DOCKET: C54282

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jimmy Jorgge

Appellant

Joseph Wilkinson, for the appellant

Jennifer Woollcombe, for the respondent

Heard: May 29, 2013

On appeal from the conviction entered on December 22, 2010 and the sentence imposed on March 30, 2011 by Justice Janet M. Wilson of the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A. introduction

[1] Jimmy Jorgge appeals his convictions for sexual assault and administering a stupefying substance with intent to commit sexual assault, and his sentence of four years’ imprisonment.

[2] The appellant raises several grounds of appeal against his convictions. I will deal with only one of them because, in my view, it is decisive of this appeal. This ground concerns one of the reasons why the trial judge found the appellant’s evidence not to be credible. She gave several reasons for rejecting his evidence. However, one important reason was that the appellant had “tailored” his trial testimony to “fit” the arguments raised on a voir dire into the admissibility of his statement to the police. The trial judge’s reliance on this reason was an error because it undermined the appellant’s right to be present at his own trial. As this error tainted the trial judge’s assessment of the appellant’s credibility, the appellant is entitled to a new trial.

B. brief background

[3] The appellant and the complainant met on a dating website. In July 2008 they met in person. They went to a park near Lake Ontario to talk and drink wine. Eventually they went back to the appellant’s condominium, drank more wine and had sexual intercourse. Their evidence differed on whether their sexual activity was consensual.

(i) The complainant’s evidence

[4] The complainant testified that she did not consent to having sexual intercourse. She said that while she was at the appellant’s condominium she began to feel tired, nauseous and paralyzed. She said that when the appellant had intercourse with her she could not move or defend herself. According to a toxicological report she had a “date rape” drug in her system – a commonly used antihistamine found in cold medicines and available over the counter.

(ii) The appellant’s statement

[5] The appellant gave a lengthy, videotaped statement to the police. During the first half of his interview, the appellant maintained that the complainant consented to the sexual activity, that she was awake and that he did not drug her. As the interview progressed, the police officer suggested that the appellant explain things to him so he would think the appellant had simply exercised bad judgment on this one occasion, and was not a serial sexual predator. In response to the officer’s comments, the appellant admitted that the complainant might have been asleep when he had sex with her, that perhaps he took advantage of the situation, and that he had shown poor judgment. After a voir dire, the trial judge ruled that the appellant’s statement was voluntary and admitted it into evidence.

(iii) The appellant’s evidence at trial

[6] At trial, the appellant explained that crucial portions of his statement were untrue, and that he always thought the complainant had consented to their sexual intercourse. He testified that he said what he did to the police officer because he felt pressured and wanted to end the interview. He did not see a way out unless he told the officer something.

[7] The appellant also denied that he had given the complainant any drugs. Moreover, he relied on the toxicologist’s opinion that the drug found in the complainant’s system, even in combination with alcohol, would not cause the conscious paralysis the complainant recounted.

C. discussion

(i) The trial judge’s credibility findings

[8] At the beginning of her reasons for conviction, the trial judge made her findings of credibility. After “unhesitatingly” accepting the evidence of the complainant, she turned to the appellant’s evidence. She concluded that where his evidence conflicted with that of the complainant, it was “a clever web of small and big lies attempting to distance himself from the suggestion that it was his plan from the beginning to get [the complainant] to go to his apartment for the purpose of sex.”

[9] In reaching this conclusion, the trial judge rejected the appellant’s explanation for the admissions he made in his statement to the police. In rejecting that explanation, the trial judge relied on the appellant’s having heard the arguments of counsel on the voir dire before testifying at trial. At para. 10 of her reasons she said:

I accept that Mr. Jorgge found the interview long and stressful, but I do not accept his evidence that he believed that he had to give some evidence to the police to conclude the interview. Mr. Jorgge is intelligent and manipulative. He was in control throughout the interview. Mr. Jorgge had the benefit of listening to the various arguments raised by his counsel at the voir dire. He also understands now that consent to sexual relations means more than a woman not protesting as sexual activity progresses.

[10] She returned to this theme a few paragraphs later, and expressly held that the appellant had “tailored” his evidence to “fit” the arguments of counsel. At para. 12 she said:

I conclude that this evidence given by Mr. Jorgge at the trial when he said “that unless I gave him something, I was never going to get out of there” was evidence carefully tailored to fit the arguments raised by the Crown and his counsel during the voir dire.

[11] Then, at paras. 13-14, the trial judge concluded that the appellant’s statement to the police was truthful and that his trial evidence, given after hearing counsel’s submissions, could not be accepted:

I conclude that the evidence given by Mr. Jorgge in his statement about the sexual activity that took place on July 18, 2008, and in particular whether [the complainant] was moving or was inert as she was sleeping or passed out, is truthful. I conclude that his commentary given at the trial is simply an attempt by Mr. Jorgge to distance himself from any concessions made in the statement relevant to the issue of consent now that Mr. Jorgge has a better understanding of the issues.

I conclude that his evidence given at the trial, when it conflicts with his prior statement, is an attempt to challenge the ruling as to the voluntariness of his statement after hearing the capable arguments of his counsel. In drawing this conclusion I have considered all of the statement and all of Mr. Jorgge’s evidence at this trial.

(ii) The trial judge’s reasoning is improper

[12] There is a natural temptation to reason as the trial judge did in this case. But this reasoning was improper because it subverted the appellant’s right to be present at his trial. Under s. 650(1) of the Criminal Code, accused persons have a statutory right, indeed an obligation, to be present at their trial. Section 650(1) is grounded in an accused’s right to a fair trial and right to make full answer and defence, which are now guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms: see R. v. Laws (1998), 1998 7157 (ON CA), 41 O.R. (3d) 499, at p. 521; R. v. Czuczman (1986), 1986 2714 (ON CA), 54 O.R. (2d) 574, at pp. 576-577.

[13] Yet in her assessment of the appellant’s credibility, the trial judge turned the appellant’s right to be present at his trial against him. The trial judge was entitled to consider the inconsistencies between the appellant’s statement to the police and his testimony at trial. She was not, however, entitled to attribute those inconsistencies to his presence at the voir dire.

[14] In a series of three cases – R. v. White (1999), 1999 3695 (ON CA), 42 O.R. (3d) 760; R. v. Schell (2000), 2000 16917 (ON CA), 148 C.C.C. (3d) 219; and R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230 – this court has condemned the kind of reasoning used by the trial judge to reject the appellant’s evidence. In White and Schell, the court held that it was improper and unfair for the Crown to suggest an accused’s evidence was not credible because the accused had testified after receiving full disclosure.

[15] In White, Doherty J.A. recognized the logic in the notion that accused persons can tailor their evidence to fit the disclosure they have received. Nonetheless, he wrote at p. 767-8:

The line of questioning set out above seems calculated to suggest to the jury that the appellant's evidence was somehow suspect because he had received full disclosure and had not been subject to cross-examination prior to choosing to testify at trial. Not only are the suggestions improper, they are potentially prejudicial. As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. Where any such suggestion seeps into the cross-examination of an accused, it must be eradicated by the trial judge.

[16] Rosenberg J.A. made the same point in Schell at paras. 56-57:

It was also an error to permit Crown counsel to cross-examine the appellant on his use of disclosure. The appellant had a constitutional right to disclosure of the Crown’s case through pre-trial disclosure and he had a statutory right to be present for the prosecution’s case at the preliminary inquiry. This was not a case where cross-examination on some aspect of the disclosure was a legitimate step in a proper cross-examination as in R. v. Cavan (1999), 1999 9309 (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.). Also seeR. v. White (1999), 1999 3695 (ON CA), 132 C.C.C. (3d) 373 (Ont. C.A.). Unfortunately, this improper conduct did not end with the cross-examination. Crown counsel also used this evidence in his jury address:

Chin [the deceased], as I said, cannot testify—the accused can. He has had a long time to think about it. He has had full disclosure. He is able to have listened to the preliminary hearing and the testimony here. And, quite frankly, he is in a position to tailor his evidence and just tell you as much as he wants to and as little as he wants to: and I submit that is what he has done. He has had a convenient memory in certain areas and relies on panic in another. [Emphasis in original omitted.]

It was wrong and unfair for Crown counsel to attempt to exploit the appellant’s exercise of his rights.

[17] Finally, in Thain, Sharpe J.A. similarly held that it was improper for the trial judge to have taken into account the accused’s receipt of disclosure in assessing his credibility. In that case, the trial judge held that “[t]he accused’s credibility must be assessed bearing in mind that his explanation comes long after disclosure was available to him and having regard to the totality of the evidence.” At para. 25 of his reasons for allowing the appeal, Sharpe J.A. said: “In my view, in the circumstances here, the fact that the appellant received disclosure could not properly or fairly be said to bear upon the assessment of his credibility.”

[18] The context for these three cases differs from the case before us, but the underlying principle is the same. In those other cases, either the Crown or the trial judge improperly used an accused’s right to disclosure to discredit the accused’s testimony. In the present case, the trial judge improperly used the appellant’s right to be present at his trial to discredit his testimony. She erred in doing so.

[19] This error figured prominently in the trial judge’s adverse assessment of the appellant’s credibility. Credibility was the significant issue at trial, in the light of the differing versions of events given by the appellant and the complainant. In Thain, at para. 38, Sharpe J.A. said“[t]he appellant was entitled to have his credibility fairly assessed without being trapped by the exercise of his constitutional rights”. Similarly, Mr. Jorgge was entitled to have his credibility fairly assessed without being trapped by the exercise of his statutory right to be present at his trial. Thus, his convictions cannot stand. I would allow the appeal and order a new trial.

“John Laskin J.A.”

I agree S.T. Goudge J.A.”

“I agree David Watt J.A.”

Released: July 18, 2013