SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 10-SA5036
DATE: 2012-05-18
RE: Her Majesty the Queen
AND
David Paul Fedy, Defendant
BEFORE: Mr. Justice Martin James
COUNSEL: Walter DeVenz, for the Crown
Norman Boxall, for the Defendant
HEARD: May 17, 2012
ENDORSEMENT
[ 1 ] The Crown seeks a ruling that the accused not be permitted to place the defence of apprehended consent (sometimes referred to as honest but mistaken belief) before the jury as there is insufficient evidence to make this plea tenable.
[ 2 ] The accused testified that after attending a birthday party at a bar with friends, two couples, consisting of the accused and his girlfriend, the complainant and another man, went to the home of the accused where they continued socializing, including spending time in a hot tub in a state of undress. Neither the complainant nor the accused said they were intoxicated although both acknowledged drinking over the course of the evening and into the night. Eventually all the guests left except for the accused and the complainant, who went to sleep alone in a spare bedroom. Early in the morning the accused went into the complainant’s room and got into bed with her. The complainant testified that she awoke to the realization that the accused was having sex with her. She immediately confronted the accused who said he thought there had been a connection between them. The complainant quickly left the house and promptly notified the police.
[ 3 ] The accused testified that after the others had left, he decided to investigate the possibility of having sex with the complainant. He acknowledged that nothing had transpired earlier in the evening to indicate that the complainant was interested in him. He agreed she was sleeping alone at the time. He said it was worth a “shot”. When he got into the bed, the complainant turned on her side and curled around him. He proceeded to rub her back over her shirt and the complainant responded positively. He then put his hand under her shirt and continued rubbing her back. He said the complainant sat up and removed her shirt. He said that when the complainant sat up there was sufficient light in the room for her to observe who was in the bed with her and he thought she did observe him. He massaged her breasts and she began “grinding into him”. He put his hand under her underwear and digitally penetrated her. He tried to remove her underwear and she lifted herself to assist, then kicked the underwear off. He then had intercourse with the complainant. When he suggested they move to his room, the complainant suddenly became angry, went around the house collecting her things in a rage and left.
[ 4 ] Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief ( Criminal Code of Canada , s. 265(4)).
[ 5 ] The judge performs a gatekeeper function in determining what should be allowed to go to the jury for consideration and what should not. The purpose of this gatekeeping role is to prevent the jury from being distracted by hopeless and outlandish arguments that create the risk of unreasonable verdicts. A defence must have an air of reality about it to be allowed to go to the jury.
[ 6 ] The test to be applied is whether there is evidence upon which a properly instructed jury, acting reasonably, could acquit if it believed the evidence to be true. The judge is to assume the evidence relied upon is true and is not to weigh or assess it beyond determining whether it is reasonably capable of supporting an acquittal. (See R. v. Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3).
[ 7 ] The air of reality test is not intended to assess whether the defence is likely, unlikely, somewhat likely or very likely to succeed at the end of the day. The question is whether there is some evidence that puts the defence in play. (See R. v. Fontaine , 2004 SCC 27 , [2004] 1 S.C.R. 702)
[ 8 ] In my view, the evidence adduced by the accused meets the required test. It satisfies the minimum threshold of plausibility to warrant going to the jury for a determination on the merits. For example, although the complainant testified at trial that she was wearing a top when she got up, one of her statements to the police indicated instead that her top was on the floor. This potentially reduces the complainant’s credibility on this issue and increases the plausibility of the accused’s testimony that the complainant removed her top and had an opportunity to observe the identity of the accused. I adopt the view of David Paciocco and Lee Stuesser in The Law of Evidence, 6 th ed. (Toronto: Irwin Law Inc., 2011), where they say at page 546, “accused persons should not lightly be deprived of the chance to present the defence they are relying upon, and the trier of fact can deal with the deficiencies when examining the defences of their merit.”
Mr. Justice Martin James
Date: May 18, 2012
COURT FILE NO.: 10-SA5036
DATE: 2012-05-18
ONTARIO SUPERIOR COURT OF JUSTICE RE: Her Majesty the Queen AND David Paul Fedy, Defendant BEFORE: Mr. Justice Martin James COUNSEL: Walter DeVenz, for the Crown Norman Boxall, for the Defendant ENDORSEMENT Mr. Justice Martin James
Released: May 18, 2012