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) , (2.1) , (2.2) , (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

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

Date: 20210304 Docket: C62193

Strathy C.J.O., Watt and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

P.D.C. Appellant

Counsel: Craig Zeeh and Alison Craig, for the appellant Karen Papadopoulos, for the respondent

Heard: November 10, 2020 by videoconference

On appeal from the conviction entered by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury, on May 15, 2014.

Zarnett J.A.:

INTRODUCTION

[1] The appellant was convicted by a jury of sexual assault, criminal harassment, and breach of recognizance, contrary to sections 271(1), 264(2)(b) and 145(3) respectively of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] The appellant was represented by counsel before, and for a substantial portion of, his trial. However, just before the Crown closed its case, the appellant discharged his counsel. He was self-represented for the balance of his trial through to his conviction.

[3] The appellant appeals that conviction on five grounds. Three of the grounds relate to what the appellant contends should have occurred in the aftermath of his decision to discharge his counsel. The appellant argues that the trial judge erred by:

i. refusing to grant a mistrial when counsel was discharged;

ii. failing to appoint amicus curiae (“amicus”) after counsel was discharged;

iii. failing to adequately protect the appellant’s rights as an unrepresented accused in the continuing trial.

[4] The appellant also argues that the trial judge erred by:

iv. failing to reconsider a similar fact ruling he made; and

v. failing to properly instruct the jury on the sexual assault charge with respect to the issue of consent.

[5] For the reasons that follow, I would dismiss the appeal.

[6] I begin by describing the circumstances of the offences to the extent required by the nature of the issues raised on the appeal. I then turn to what occurred before and at the trial concerning the appellant’s representation by counsel, the requests made of the trial judge for a mistrial and appointment of an amicus, and how those requests were dealt with. Against that background, I discuss each of the appellant’s grounds of appeal.

BACKGROUND

The Offences

[7] For several years, the appellant was in a relationship with the complainant, N.S. They had a child together.

[8] In the fall of 2012, N.S. and the appellant were living in separate residences. N.S. wanted to end the relationship completely, but the appellant was highly resistant to that occurring.

[9] In September or October 2012, N.S. and the appellant were at the appellant’s apartment with their child. N.S. attempted to leave to put the child to bed, but the appellant told her she had to have sex with him before she left. N.S. told him that she did not want to. The complainant and the appellant fought physically and verbally. He prevented her from calling the police, and initially prevented her from leaving his apartment at all. When he finally relented to the extent of allowing her to go to his parents’ apartment in the same building, he took her purse from her.

[10] When N.S. arrived at the appellant’s parents’ apartment, she explained to his mother that she wanted to go home, that the appellant had her “stuff”, and that he was demanding they have sex despite her not wanting to. The appellant’s mother told her to have sex with the appellant and “get it over with”.

[11] The appellant then arrived at his parents’ apartment, and he and his parents engaged in a heated argument. After ten to fifteen minutes, N.S. returned with the appellant to his apartment where sexual intercourse occurred. She testified that “I didn’t consent really. I–I did it so I could go home. So I’m not really consenting.” She explained that she did not really have a choice. If she had not engaged in intercourse with the appellant, “(t)here would have been more fighting, more—I’d be a prisoner, wouldn’t be allowed to go home.”

[12] On October 31, 2012, N.S. contacted the police to report that the appellant had been harassing her and that she feared he was going to kidnap her children. She had received numerous phone calls and text messages from the appellant containing threats and demands. Changing her telephone number did not stop the messages. The police told the appellant that N.S. wished no further contact with him and that he could be charged with criminal harassment. However, he continued to repeatedly text and call N.S. making demands that she come to his place for sex, stop ignoring him, and come back to him. He also made threats of various consequences to her, their child, and her family if his demands were not met. These caused N.S. to further fear for her and her family’s safety.

[13] On November 25, 2012, the appellant was arrested and subsequently charged with sexual assault and criminal harassment. He was released on bail on November 30; one of the conditions was that he not contact N.S. He continued, nonetheless, to do so. On December 9, the appellant was arrested for breach of recognizance and a no contact order was made. He continued to make calls to the complainant.

[14] The appellant did not testify at trial. His position was that the offences had not been proven beyond a reasonable doubt. He submitted to the jury that, with respect to the sexual assault charge, the sex had been consensual.

The Appellant Raises and then Withdraws a Complaint Concerning Legal Representation

[15] The appellant was represented by counsel during the proceedings leading up to trial. Mr. Lyons (“trial counsel”) appeared for the appellant at judicial pre-trials and other pre-trial matters, including the scheduling of the trial.

[16] Between March 31 and April 11, 2014, there were seven motions heard by the trial judge relating to particulars, quashing counts, severance, similar fact evidence, s. 276 of the Code, the exclusion of certain text messages, and the voluntariness of statements to the police. The appellant was represented by trial counsel on all of them.

[17] On April 11, the trial judge ruled on the motions with reasons to follow and set jury selection for April 23.

[18] On April 23, the trial judge delivered his reasons on the motions and requested trial time estimates from counsel. The Crown estimated a trial length of five days. On behalf of the appellant, trial counsel estimated five to seven days. The jury panel was told to be available for two weeks, to be on the safe side.

[19] However, on April 23, before jury selection commenced, the appellant advised the trial judge that he was dissatisfied with trial counsel. He wanted the trial judge to order trial counsel’s more senior colleague to attend to conduct the trial. Trial counsel advised the trial judge that he had no prior notice of the appellant’s alleged dissatisfaction or that he would be making any such request. Upon being contacted, trial counsel’s senior colleague advised that he had no prior notice of the appellant’s request, and that the appellant had no basis to expect him to conduct the trial. The appellant told the trial judge that he had contacted Legal Aid and was told that another lawyer would not be funded.

[20] The trial judge adjourned jury selection to April 28, giving the appellant five days to decide whether to keep his current counsel, proceed without counsel, or make a request for an adjournment of the trial to seek new counsel.

[21] On April 28, the appellant appeared with trial counsel, ready to proceed. He advised that he no longer wished to discharge trial counsel.

The Trial Proceeds

[22] The trial proceeded and the jury was selected. Between April 29 and May 6, the Crown called 16 witnesses, representing almost all of the Crown’s case. The witnesses included the complainant. They also included the appellant’s former partner, C.D.G., who, under a similar fact ruling the trial judge had made on a pre-trial motion, gave evidence of the appellant’s behaviour when their relationship ended. Crown witnesses were cross-examined on behalf of the appellant by trial counsel.

[23] On May 6, the trial judge adjourned the trial to May 8 to hear the two remaining Crown witnesses, who were expected to be brief, after which the defence could begin its case if an election were made to call evidence.

The Appellant Discharges Trial Counsel

[24] On May 8, when court commenced, trial counsel advised the trial judge that the appellant wished to address the court. The appellant was cautioned by the trial judge about the risk involved when a represented party addresses the court directly, but the appellant confirmed that he still wished to do so.

[25] The appellant then advised the trial judge that he had made an “executive decision” to terminate the services of trial counsel.

[26] The trial judge warned the appellant that if he discharged his counsel “the trial may continue in any event”. He referred to the advanced stage of the trial, as well as the opportunity the appellant had been given before the trial to ask for an adjournment based on concerns about his representation. The appellant responded that he understood the possibility that the trial judge would direct that the trial continue. He confirmed that he still wished to terminate the services of his counsel.

[27] At the same time, the appellant told the trial judge that he was not capable of continuing the trial as he lacked a degree in law. He stated that he had not understood his rights when he failed to take up the trial judge’s earlier invitation to request an adjournment, due to the absence of resources available to him while in custody. He stated that his desire was for the trial to start over again, and mentioned a lawyer acting for him on other charges who perhaps could become involved in this matter. He also referred to a Rowbotham application for court-ordered counsel.

[28] The trial judge confirmed that the appellant had legal advice available to him both when he decided not to apply for an adjournment and now about discharging his counsel. He confirmed with both the Crown and trial counsel his understanding of the law that the appellant was entitled to terminate counsel with or without a reason. [1] The trial judge confirmed with the appellant that when he said he wanted to start the trial over again, he wanted a mistrial.

[29] The trial judge held the matter down for approximately an hour. He advised the appellant that when court recommenced, if he still wanted to discharge trial counsel even though the trial may continue, he would be allowed to do so. The trial judge also advised that he would then hear the appellant’s mistrial application.

[30] Upon court resuming, the appellant confirmed that he wanted to discharge trial counsel. The trial judge confirmed that counsel was discharged.

The Mistrial Application

[31] The appellant advised that he was making an application for a mistrial. His grounds were various points of dissatisfaction with the performance of trial counsel; that if he were found guilty the Crown would seek a dangerous offender designation; that the jury was not taking notes which indicated that they had prejudged the matter; and that his lack of legal training and the absence of resources available to him while in custody prejudiced his ability to defend himself and have a fair trial.

[32] The trial judge dismissed the mistrial application. He referred to the opportunity given the appellant prior to trial to apply for an adjournment to deal with any dissatisfaction with his legal representation. He noted that the appellant had not made such an application and, as a consequence, the trial had proceeded since April 28 almost to the completion of the Crown’s case. He noted that it had been made clear to the appellant that if he discharged counsel at this point, the trial could be ordered to continue. Finally, the appellant was aware that Legal Aid would not provide him with another lawyer.

[33] The trial judge stated that he had observed nothing to substantiate the appellant’s concerns about his counsel’s performance, that the jury had no obligation to take notes, and that if there was a conviction, the appellant would have time to retain counsel to act at any sentencing proceeding including to deal with the dangerous offender issue. [2] Given that it was the appellant’s choice to terminate counsel, the complaints of the appellant that he could not receive a fair trial without counsel were without merit. He concluded that no substantive cogent reason for a mistrial had been raised. He further stated, “…this appears to be nothing more than an attempt by [the appellant] to delay this trial”.

The Trial Judge Refuses to Appoint Amicus

[34] The same day, the trial judge considered whether to appoint amicus to assist with the closing address and the jury charge. The appellant suggested that his lawyer in another case serve as amicus, but the trial judge expressed concern about that. The trial judge asked if Legal Aid could arrange for a lawyer to serve as amicus.

[35] On May 9, a representative of Legal Aid attended at trial and told the trial judge that it would endeavour to have a lawyer serve as amicus, but could not guarantee it would be by the Monday of the following week.

[36] The trial judge then decided not to appoint amicus. He cited the delay that would be involved, and his ability to provide “the same kind of procedural guidance that an amicus would to [the appellant]”.

The Completion of the Trial

[37] The Crown completed its case on May 8. The trial judge adjourned the matter to May 12 to allow the appellant to decide whether to testify and/or call witnesses. On May 12, the appellant asked again for an adjournment and to make a Rowbotham application, which were both refused. The appellant called one witness and filed certain exhibits. He did not testify.

[38] On May 13, the appellant again requested a mistrial, this time alleging that the trial judge was biased against him. The request was rejected due to a lack of evidence. The Crown and the appellant addressed the jury, which began to deliberate the next day. On May 15, the jury returned verdicts of guilty on the counts of sexual assault, criminal harassment, and breach of recognizance. The jury acquitted on a count of breach of court order.

ANALYSIS

Ground (i): The Failure to Declare A Mistrial

[39] A trial judge’s broad power to manage the trial process includes a discretion to grant what is a remedy of last resort—a mistrial. A mistrial is to be granted only “where there is a real danger that trial fairness has been compromised” and “in order to avoid miscarriages of justice”. Given that the trial judge is in the best position to determine these matters, a decision about a mistrial is entitled to significant deference on appeal: R v. Khan, 2001 SCC 86 at para. 52; R v. G.C., 2018 ONCA 392 at paras. 2-5.

[40] The appellant, while acknowledging that the decision to grant a mistrial is discretionary, argues that the trial judge erred in the exercise of his discretion in two ways. First, he says that the trial judge’s reliance on the appellant’s motive to delay was procedurally unfair, as the existence of this motive was neither put to the appellant nor argued by the Crown, and rested on an insufficient evidentiary basis. Second, he says the trial judge failed to consider options, other than an outright refusal of a mistrial and continuation of the trial, to protect the rights of the appellant as an unrepresented person.

[41] I would not give effect to these arguments.

[42] As soon as the appellant raised his desire to discharge trial counsel and coupled that with his position that he would not be able to continue without counsel, the trial judge let the appellant know his concerns. He advised the appellant that he was concerned about the stage of the proceeding when this was being raised, especially since the appellant had been afforded, and had not taken up, the opportunity to request an adjournment before the jury was selected. The concern that this was a delay tactic was thus effectively put on the table. On the record before him, the trial judge was entitled to draw the conclusion that a desire for delay motivated the request for a mistrial.

[43] Moreover, the trial judge examined and rejected each of the grounds that the appellant put forward in support of his request for a mistrial. His conclusion that the appellant provided “no substantive cogent reasons” for a mistrial was an appropriate one, and was sufficient to justify the rejection of the mistrial request whether or not it was motivated by a desire for delay.

[44] I see no merit in the argument that the trial judge erred by not considering alternatives beyond the outright dismissal of the mistrial request. The trial judge did consider how the trial would go forward. He considered the appointment of amicus and the assistance and accommodation required for the appellant as a self represented accused. These are discussed below. He did not err in failing to consider alternatives raised for the first time on appeal, such as having the appellant re-elect trial by judge alone.

[45] The appellant made a voluntary decision to discharge his counsel when the trial was at an advanced stage. The appellant does not contend in this court that the assistance the appellant received from his trial counsel was ineffective. There was no basis to conclude that anything had occurred up to the point the appellant decided to discharge his counsel that compromised trial fairness. The decision of the appellant to render himself unrepresented for what remained of the trial was not, in these circumstances, something that necessitated a mistrial to avoid a miscarriage of justice. The mistrial request was properly refused.

Ground (ii): The Failure to Appoint Amicus

[46] A trial judge has a well-recognized discretion to appoint amicus: R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197 at para. 80. But amicus need not necessarily be appointed simply because an accused chooses to be unrepresented:

…(T)he power to appoint amicus is to be used “sparingly and with caution ... in response to specific and exceptional circumstances”, … where “the assistance of amici [is] essential to the judge discharging her judicial functions in the case”, that is, “to ensure the orderly conduct of proceedings and the availability of relevant submissions ... [on] contested, uncertain, complex and important points of law or of fact”: Imona-Russel at para. 77, citing Ontario v. Criminal Lawyers’ Association Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (“CLA”) per Karakatsanis J., at para. 47 and per Fish J. (dissenting, but not on this point), at para. 108.

[47] The appellant argues that the trial judge’s initial consideration of whether to appoint amicus shows that he thought it was an appropriate thing to do, but that he overlooked appointments that could have been made, and was inappropriately influenced by any delay that would be involved. The appellant submits that the trial judge failed to properly consider appointing, as amicus, either trial counsel or the lawyer who was acting in another matter for the appellant. He also argues that the trial judge erred in not appointing any amicus because Legal Aid could not guarantee there could be one without some delay in the resumption of the trial.

[48] I would reject these arguments.

[49] I see no error in the trial judge’s decision not to appoint, as amicus, either trial counsel or the appellant’s lawyer in another case. There is a sharp distinction between the duties of a lawyer acting as amicus and the duties of defence counsel, so much so that a “lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court”: CLA, at paras. 49-56. The same issue of conflicting duties to the court and the accused that arise when the role of amicus is expanded to the role of defence counsel, the point addressed in CLA, would be present if former defence counsel, or defence counsel in another case (each of whom owed duties to the appellant), were given the role of amicus.

[50] Nor did the trial judge err in deciding not to appoint amicus after learning that Legal Aid could not guarantee the attendance of a lawyer when the trial was scheduled to resume. The trial judge did not over-emphasize the significance of the delay. His reason for not appointing amicus was that he could provide guidance to the appellant. This was the pivotal consideration. The appointment of amicus is to take place when it is “essential”. It is not essential in “the vast majority of cases”, as long as the trial judge provides guidance to the unrepresented accused so that “a fair and orderly trial can be ensured without the assistance of an amicus”: CLA, at para. 116, per Fish J. (dissenting, but not on this point). The appellant has not identified a complex issue on which the trial judge required the assistance of amicus in order to ensure the court’s duty to an unrepresented accused was fulfilled.

Ground (iii): The Failure to Protect the Rights of an Unrepresented Accused

[51] Upon the appellant becoming self-represented, the trial judge had a duty, through the provision of guidance and assistance, to ensure he received a fair trial. As this court stated in R. v. Breton, 2018 ONCA 753, 366 C.C.C. (3d) 281 at paras. 13-14:

It is well settled that where an accused is self-represented at trial, the presiding judge has a duty to ensure that the accused has a fair trial. To fulfill that duty, the trial judge must provide guidance to the accused to the extent that the circumstances of the case and those of the particular accused may require it. Within reason and without becoming counsel for the accused, trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him, as the trial unfolds, in such a way that the defence is brought out with its full force and effect.

No one gainsays that the onus on a trial judge to assist a self-represented accused is a heavy one. It is not enough that the verdict at the end of the trial is or appears correct. What matters is whether the trial has been fair for the self-represented accused: R. v. Tran (2001), 156 C.C.C. (3d) 1 (Ont. C.A.), at para. 22.

[52] The appellant submits that the trial judge did not provide helpful responses to questions the appellant raised, and that he displayed impatience, imbuing the proceedings with an air of unfairness. He also argues that the trial judge failed to provide the necessary guidance and assistance to the appellant in connection with three specific matters:

i. the appellant’s desire to re-open cross-examination of witnesses called by the Crown who had been cross-examined by trial counsel before he was discharged;

ii. the decision of the appellant about whether to testify; and

iii. calling witnesses to testify for the defence.

[53] The appellant also submits that the trial judge should have adjourned or slowed-down the trial to allow the appellant to be better prepared or to make decisions without being rushed.

[54] I do not accept these arguments.

[55] The assistance and guidance that the trial judge had to provide was that necessary to ensure the appellant had a fair trial, not a perfect trial, nor the exact trial the appellant would have had if he continued to be represented by counsel. In deciding how to accomplish this, the trial judge had to exercise his discretion based on the context.

[56] Here, the context included the fact that the bulk of the trial was conducted while the appellant was represented by counsel, the appellant had chosen to discharge counsel, the appellant was in custody, and the appellant was legally untrained.

[57] To address the circumstance that the appellant was taking over the conduct of his defence from counsel while in custody, the trial judge ensured that the appellant was given access to the Crown disclosure and his counsel’s notes so that he could have them over the weekend before the trial resumed. The Crown provided him with a copy of the Code and the cases that the appellant said he wanted. The trial judge directed that a laptop be made available to the appellant if reasonably possible by the institution in which the appellant was in custody. Finally, the trial judge directed that arrangements be made so that the appellant would have access to a telephone while in the courthouse to make calls to a lawyer.

[58] In terms of the overall responsiveness of the trial judge to the appellant’s need for guidance and assistance, the trial judge provided the appellant with a comprehensive information package about the remaining steps in the trial including the cross-examination of witnesses, an accused’s decision whether to testify, and the making of closing submissions. The trial judge advised the appellant of the importance of this package and on multiple occasions reminded him that he should review it. The trial judge supplemented this with his own explanations. He provided guidance to the appellant regarding cross-examining the remaining Crown witnesses. He provided the appellant with a summary of the Crown evidence before he had to call his defence to assist in its preparation. He gave the appellant assistance about calling witnesses, such as by providing the appellant with an information sheet on summoning witnesses. He explained the considerations that go into deciding whether to testify, as well as guidance on what to focus on in closing. He drafted both the summary of the Crown position and the defence position for his jury charge so that the appellant would not be at any disadvantage due to drafting ability. He encouraged the appellant to seek assistance from the lawyer on his other case and from duty counsel on any decision he needed to make.

[59] At times, the trial judge reacted sternly or with impatience toward the appellant. But against the backdrop of the substantial guidance and assistance the trial judge did provide, I am not persuaded that those occasional reactions deprived the appellant of basic procedural fairness–the hallmark of a fair trial: R. v. Harrer, 1995 SCC 70, [1995] 3 S.C.R. 562 at para. 45.

[60] Nor was the appellant deprived of a fair trial because of a failure of the trial judge to explain the process by which Crown witnesses, who had testified and been cross-examined by trial counsel, could be re-called so that the appellant could “re-cross-examine” them. Other than the appellant’s assertion to the trial judge that his counsel’s cross-examination was “improper”, nothing was provided to the trial judge to justify re-calling any witnesses. Moreover, there is nothing in the appellant’s argument in this court that identifies the deficiencies in counsel’s cross-examination or why further cross-examination should have been entertained.

[61] There was no meaningful lack of guidance and assistance offered to the appellant on the decision about whether to testify. The appellant had been represented by counsel until May 8. He was provided with an information package covering this decision on that day. He was also encouraged to consult the lawyer acting for him on another matter for any additional assistance. He had until May 12 to consider the options. In these circumstances, his decision not to testify does not indicate that he received less than a fair trial.

[62] Similarly, there was no lack of meaningful guidance and assistance concerning the calling of defence witnesses. On May 8, the appellant was given an information sheet about calling witnesses and was told by the trial judge that this was the time for him to summon his witnesses. Court assistance was provided for the immediate issuance of as many subpoenas as the appellant wanted. The appellant decided to subpoena one witness who testified on May 12. The appellant has not supported his complaint that he was not given a later opportunity to subpoena more unspecified witnesses with anything suggesting who they were, why they were not summoned for May 12, or what relevant information they would have had.

[63] I see no merit in the appellant’s argument that the trial judge failed to sufficiently slow the pace at which the trial proceeded from May 8, when the appellant discharged his trial counsel, to May 15, when the verdict was rendered.

[64] At the time of the discharge of trial counsel, the Crown’s case was almost complete, and the jury had been hearing the case since April 28. The appellant had received the benefit of counsel through most of his case. Nevertheless, the appellant was afforded additional timing accommodations. He was given from May 8 to May 12 to start his defence, and to decide if he would testify. On May 12, after calling one witness, and electing not to testify, he was given a further day to prepare his closing submissions. On May 13, even though he had called evidence, he was given the benefit of listening to the Crown’s closing before making his own. He was given a further short break before beginning his closing.

[65] In addition to the accommodations required by the appellant, the trial judge was entitled to consider the public interest in seeing the proceedings conclude in a timely way. “…(A) fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community”: Harrer, at para. 45. I see no error in the manner in which the trial judge took into account these interests and controlled the pace of the trial to its conclusion.

Ground (iv): The Failure to Reconsider the Similar Fact Evidence Ruling

[66] One of the pre-trial rulings made by the trial judge was to allow the Crown to call evidence of the appellant’s conduct toward his former partner, C.D.G., as similar fact evidence admissible on the charges of sexual assault and criminal harassment. The appellant does not take issue with the correctness of that ruling. He argues, however, that when the evidence of C.D.G. was led, it varied from what had been presaged before trial. He submits that the trial judge should have revisited its admissibility on the sexual assault charge. He also submits that the trial judge erred by failing to correct the Crown’s invitation, in closing to the jury, to use the evidence of C.D.G. on the sexual assault charge. He makes neither complaint in relation to the criminal harassment charge.

[67] I would not give effect to this ground of appeal.

[68] When the evidence of C.D.G. was led, the appellant was represented by trial counsel. No request to revisit the earlier ruling was made to the trial judge.

[69] More importantly, when the evidence was led, the trial judge gave a mid-trial instruction to the jury that they could not infer the appellant’s guilt because he had committed offences or engaged in other conduct against C.D.G. He also told them: “At the end of the trial I will tell you how this evidence may be used”.

[70] When charging the jury at the end of the trial, the trial judge told them that they were required to follow his instructions on legal matters, in preference to what counsel may have said to them. He repeated how they were not permitted to use the similar fact evidence, and told them the only ways in which they were permitted to use it, which was in relation only to the charge of criminal harassment.

[71] To the extent that the pre-trial ruling as to the charges on which the similar fact evidence was admissible needed to be revised, it was. The jury was never told by the trial judge that they could use the evidence on the sexual assault charge—he told them the opposite. Moreover, in light of the clear instruction to the jury that they could only use the evidence on the charge of criminal harassment, no other correction of what the Crown had said about the use of the evidence was required.

Ground (v): The Failure to Adequately Instruct the Jury on Consent

[72] The trial judge instructed the jury on the issue of consent as follows:

Consent is required regardless of whether the parties are married, in a common law relationship or acquaintances. It matters not. The other person's consent to the physical contact is required. To decide whether [N.S.] consented to the physical contact, you must consider [N.S.'s] state of mind. Consider all the evidence, including the circumstances surrounding [the appellant’s] physical contact with [N.S.], to decide whether [N.S.] consented to it. Take into account any words or gestures, whether by [the appellant] or [N.S.], and any other indication of [N.S.'s] state of mind at the time. Just because [N.S.] submitted or did not resist does not mean that [N.S.] consented to what [the appellant] did. Consent required [N.S.'s] voluntary agreement, without the influence of force, threats, fear, fraud or abuse of authority to let the physical contact occur.

Unless you are satisfied beyond a reasonable doubt that [N.S.] did not consent to the application of force, you must find [the appellant] not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that [N.S.] did not consent to the application of force, you must go on to the next question.

[73] The appellant argues that the charge failed to distinguish between the two steps of the consent inquiry required by the decision of the Supreme Court of Canada in R. v. Hutchison, 2014 SCC 19, [2014] 1 S.C.R. 346. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under ss. 273.1(1) and it requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner. If the complainant consented, or her conduct raises a reasonable doubt about the lack of voluntary agreement to the sexual activity in question, the second step is to consider under ss. 265(3) and 273.1(2) whether there are any circumstances that may vitiate the complainant’s ostensible consent.

[74] Subsection 265(3) of the Code provides that consent is not obtained if the complainant submitted or did not resist due to, among other things, threats or fear of the application of force to the complainant or another person.

[75] The appellant argues that the jury should have been specifically instructed to first consider whether there was voluntary agreement, and if so, to go on to consider the consent vitiated only if there were threats or fear of the application of force. [3] The appellant argues that because the jury was not instructed to follow the two-step process, it could have found that N.S. voluntarily agreed to sexual activity, but improperly thought that the consent was vitiated due to a generic or generalized fear of continuing argument, rather than what the Code requires, a fear of the application of force.

[76] I would not give effect to this argument.

[77] Where a person does not actually choose to participate in the sexual activity, there is no voluntary agreement. The absence of this subjective mental state—voluntary agreement to participate in sexual activity— establishes the requisite actus reus of the offence, and makes it unnecessary to enter into an inquiry as to whether ss. 265(3) or 273.1(2) applies to vitiate the consent: R v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330 at paras. 39-40; R v. Stender (2004), 72 O.R. (3d) 223 (C.A.), aff’d 2005 SCC 36, [2005] 1 S.C.R. 914; R. v. G.F., 2019 ONCA 439, 146 O.R. (3d) 289, at paras. 42, 46, leave to appeal granted, [2019] S.C.C.A. No. 331.

[78] This was not a case, like Hutchison, where an ostensible voluntary agreement was vitiated by fraud later discovered by the complainant. Here, the issue was whether there was any voluntary agreement at all.

[79] The Crown’s case turned on the credibility of the complainant. Her evidence was of an absence of any voluntary choice to participate in sexual activity. She testified that she did not want to engage in sexual activity, never communicated consent, and only engaged because she felt she had no choice—otherwise she would not be allowed to go home. Neither her evidence, nor the Crown’s theory at trial, presented a situation of an ostensible voluntary communicated consent requiring a separate second step consideration of whether that consent was vitiated.

[80] The adequacy of the instruction is a function of whether it allowed the jury to comprehend the case and equipped them to fulfil their adjudicative mandate on the sexual assault charge, given the evidence and the theory of the case: R. v. Bonnell, 2015 NBCA 6, 321 C.C.C. (3d) 247 at para. 84, leave to appeal refused, 2015 CarswellNB 311. In my view, the instruction given met that standard. The jury was asked whether N.S. voluntarily agreed to engage in sexual activity without the influence of force, threat, fear, fraud, or abuse of authority. In the context of this case, the instruction directed them to consider whether N.S. had made an actual voluntary choice to participate in sexual activity. The appellant was not prejudiced in this case by the instruction given.

CONCLUSION

[81] I would therefore dismiss the appeal.

Released: March 4, 2021 “G.R.S.”

“B. Zarnett J.A.”

“I agree. G.R. Strathy C.J.O.”

“I agree. David Watt J.A.”

[1] The appellant at times offered reasons why he wanted to discharge counsel, but the trial judge advised him it was unnecessary and inadvisable for him to elaborate on them.

[2] In fact, the appellant was represented by counsel for sentencing. On March 29, 2016 he was designated a dangerous offender and received a global sentence of 7.5 years less 5 years of credit for pre-trial custody, and a 10-year Long Term Supervision Order.

[3] The trial judge’s charge largely followed the specimen charge in use at the time of the trial, which began in the month that Hutchison was decided. The specimen charge was updated in 2015: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015).