Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220322 Docket: C68627

Tulloch, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.M. Appellant

Counsel: J.M., acting in person Breana Vandebeek, duty counsel Jeffrey Wyngaarden, for the respondent

Heard: January 10, 2022 by video conference

On appeal from the conviction entered on January 11, 2020 by Justice Jill Copeland of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was found guilty and convicted of one count of sexual assault, following a trial by judge and jury. He was sentenced to 18 months custody. He now appeals his conviction.

[2] On appeal, the appellant raises six grounds, all relating to alleged errors he claims the trial judge committed in her charge to the jury.

[3] All of the appellant’s grounds of appeal can be summed up as alleging an inadequacy in the trial judge’s jury charge. He submits that the trial judge erred in her instructions on the use the jury could make of the DNA evidence; failed to connect the defence theory to the facts of the case; failed to instruct the jury on the limited use of the expert biological evidence; failed to instruct the jury that the complainant’s evidence was to be viewed objectively and critically; and failed to instruct the jury on whether the appellant knew the complainant did not consent.

[4] For the reasons that follow, the appeal is dismissed.

[5] The appellant and the complainant knew each other as they both worked at the same place. On April 2, 2017, they planned to meet later that evening at the appellant’s apartment. Prior to their meeting, they discussed how the evening would unfold. According to the complainant, she had indicated to the appellant on a previous occasion that she was romantically interested in him but told him she did not want to have sex with him.

[6] Once she arrived at the appellant’s apartment, and their moods relaxed, they engaged in mutual consensual oral sex. Sometime after, the appellant tried to insert his penis into the complainant’s vagina, but the complainant told him she did not want to have sexual intercourse. A short time later, the appellant again tried to have sexual intercourse with the complainant, and was successful in penetrating the complainant, at which time she said “no, I don’t want to have sex”. The appellant did not stop but instead continued.

[7] According to the complainant, the second incident of sexual intercourse lasted for about 10 minutes.

[8] Eventually the appellant fell asleep, at which time the complainant texted a friend, who sent a third-party to pick her up. The complainant and the third party went straight to the police and provided a statement. A forensic expert subsequently analyzed various samples from the complainant’s underwear. DNA testing revealed that the substance on the complainant’s underwear was likely semen.

[9] At trial, the only issue was consent.

[10] The appellant conceded that there was touching for a sexual purpose. The trial turned on whether the Crown had proven beyond a reasonable doubt that the complainant had not consented to sexual intercourse, and whether the appellant knew that the complainant had not consented.

[11] We see no merit to any of the appellant’s grounds of appeal.

[12] It is well established that the adequacy of a charge must be considered in the context of the trial as a whole, as Watt J.A. explained in R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 49 [citations omitted]:

Jury charges do not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of jury charges must acknowledge this reality, especially where the complaint is about the extent to which the trial judge has reviewed the evidence in final instructions. Appellate review on this issue includes consideration of the complexity and volume of the evidence adduced at trial, the extent of its review by counsel in their closing addresses, the length of trial proceedings, the issues to be resolved by the jury, the effect of a more complete and balanced review of the evidence, and whether counsel objected to the charge on the ground advanced on appeal. The test is one of fairness…. Provided the evidence is left to the jury in a way that will permit the jurors to fully appreciate the issues raised and the defences advanced, the charge will be adequate.

[13] The complainant alleged and testified that while she consented to some aspect of the sexual contact with the appellant, she did not consent to sexual intercourse. The DNA testing suggested that the fluid found on the complainant’s underwear was likely semen. The trial judge dealt with this evidence and instructed the jury as to what use they could make of the DNA evidence. In her charge to the jury, the trial judge also clearly and succinctly set out the position of the defence and that of the Crown and related the relevant evidence for each position to assist the jury in their deliberation. There was no objection to the charge by the defence.

[14] The trial judge carefully and thoroughly reviewed the evidence in her charge to the jury and instructed the jury on the essential elements of the offence of sexual assault that the Crown was required to prove beyond a reasonable doubt. She highlighted for the jury that the live issue in the trial was that of consent; that the Crown was obliged to prove beyond a reasonable doubt, based on all the evidence adduced at the trial, that the complainant did not consent to the sexual intercourse; and that in order for them to convict the appellant, they must also find that the appellant knew that the complainant did not consent to the alleged sexual intercourse.

[15] The trial judge further noted that the Crown’s evidence turned on the credibility and reliability of the complainant’s evidence. She painstakingly reviewed the complainant’s evidence and pointed out various inconsistencies in her evidence.

[16] We see no error in the jury charge as alleged. A jury charge must be viewed as a whole and assessed as to its functionality. As this court recently noted in the case of R. v. R.D., 2020 ONCA 23, at para. 10:

The standard required of a jury charge is adequacy, not perfection. The appellate court’s approach is functional, assessing the adequacy of the charge as a whole, in the context of the trial in which the instructions were given, and in light of its purpose: R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 32-41; R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The charge must provide the jury with a sufficient understanding of the facts as they relate to the relevant issues from the trial: Jacquard, at para. 14. The trial judge has an obligation to review the substantial parts of the evidence and to relate the evidence to the issues to be decided. What is necessary are references to the evidence that are sufficient, in the context of the case and the entirety of the charge, to alert the jury to the specific parts of the evidence that are of significance to its decision on particular issues and to the positions of the parties on those issues. The role of the trial judge is to decant and to simplify: R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at paras. 53 and 56.

[17] This was a case that turned on the evidence of the complainant. The appellant did not testify. The case turned on whether the jury believed the complainant that she did not consent to the sexual intercourse. The trial judge thoroughly reviewed the evidence and highlighted all the relevant evidence, including areas of inconsistencies in the complainant’s evidence. The trial judge also reminded the jury throughout her charge of the onus of proof on the Crown to prove the guilt of the appellant beyond a reasonable doubt, and that the appellant was innocent until proven guilty based on the evidence beyond a reasonable doubt.

[18] In all the circumstances, we see no merit to any of the grounds of appeal. As such, the appeal is dismissed.

“M. Tulloch J.A.”

“G. Pardu J.A.”

“A. Harvison Young J.A.”