SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 23/11
DATE: 20120604
RE: Her Majesty the Queen v. Winston Roberts
BEFORE: Coats J.
COUNSEL:
K. Frew, Counsel for the Crown
T. Wiley, Counsel for Winston Roberts
RULING RE: AMBIGUOUS VERDICT
cOATS j.
PART 1: ISSUE
[ 1 ] The defence position is that the jury’s verdict of guilty with respect to the charge of sexual assault is ambiguous because it may have been founded on touching and/or digital penetration and/or intercourse, and that therefore I, as trial judge, am entitled to determine the facts independent of the jury verdict in arriving at a proper and fit sentence. There is no issue with respect to the finding of guilt with respect to the assault charge.
[ 2 ] The defence position is best summarized in para. 19 of the defence written submissions which provides as follows:
- It is submitted in the case at bar the following circumstances be resolved as follows:
a) There exists on the record an invitation by Crown Counsel to return a guilty verdict on any one of these evidential bases;
b) The evidential bases are on an ascending scale of aggravation from touching to intercourse;
c) The potential disposition on sentence is related to the bases upon which the jury found the accused guilty;
d) It is not clear from the verdict of the jury upon what basis the accused was found guilty;
e) Accordingly, upon the sentencing hearing, it is respectfully submitted that the trial judge is entitled (with the assistance of counsel and court record) to determine the facts independent of the jury verdict at arriing [arriving] at a proper and fit sentence.
PART 2: BACKGROUND
[ 3 ] Winston Roberts was found guilty by a jury on June 23, 2011 in Milton, Ontario of the offences of sexual assault ( Section 271 of the Criminal Code of Canada ) and assault ( Section 266 of the Criminal Code of Canada ).
[ 4 ] Mr. Roberts was remanded for sentencing to October 11, 2011 and later to November 30, 2011, as there was an issue with the pre-sentence report.
[ 5 ] Neither the jury verdict of guilty of assault, nor the procedure arising therefrom, is in dispute.
[ 6 ] On November 30, 2011 for the first time the issue of an ambiguous jury verdict in respect to the count of sexual assault was raised. This was shortly after new defence counsel had received and reviewed the trial transcript.
[ 7 ] Crown counsel in her submissions to the jury on June 22, 2011 stated to the jury that they were legally entitled to find the accused guilty of sexual assault notwithstanding that verdict could be reached for different reasons and on different, separate evidential bases.
[ 8 ] The specifics of what the Crown said in closing are as follows (Closing by the Crown, pg. 29, line 4 to pg. 30, line 9):
Similarly, although you must be unanimous in your verdict, so you need to reach it as a group, you need not be unanimous in the way that you reach your verdict. Just as there are many ways to travel from Toronto to Vancouver, you can go by car or by train, by plane, you can dig different routes on the ground, it’s important - what is important in this case as there is, is that you all reach the same destination. For example, in this case, you don’t have to agree as to what is the precise sexual assault that was perpetrated on K.J.. Three of you may find that the accused touched K.J.’s breasts against her wishes and that that has made out the sexual assault in your mind; you need not go any further. Three of you may find beyond a reasonable doubt that Mr. Roberts inserted his finger into K.J.’s vagina after she had told him, “No. Stop. Why are you being this way?” And that that will convince you beyond a reasonable doubt that she was sexually assaulted. The rest of you may find that the accused penetrated K.J. with his penis after being told twice, “No. Stop. Why are you being like this?” And that this makes out of the offence of sexual assault. You need not be unanimous on what the assault is, and I’ll get to the definition of sexual assault soon. What’s important here, is if you all agree that one or more sexual assaults happened.
These differences in opinion don’t matter, provided you’re all satisfied at the end of the day that it was Winston Roberts intentionally touched K.J. in a sexual manner [sic], without her consent and that he knew she wasn’t consenting.
[ 9 ] On November 30, 2011 the sentencing was adjourned to February 3, 2012 for submissions to be made on the issue identified above. Submissions were completed on that date.
[ 10 ] I did not remark in my charge to the jury on the above noted portion of the Crown’s submissions. I was not asked to by either counsel who had my charge in advance.
[ 11 ] At the time of the findings of guilt, Mr. Roberts was a first offender with no criminal record.
[ 12 ] Following the address by Crown counsel, the following occurred:
Defence Counsel was not permitted in law to address the jury on the Crown’s theory of separate routes to verdict;
Defence Counsel did not seek to have me comment on the Crown address on this point;
In my charge, I did not address this.
PART 3 - LEGAL ISSUES
[ 13 ] The legal issues can be defined as follows:
Assuming Crown counsel was correct in her closing to the jury, regarding three different routes to a guilty verdict, can it be said such constituted an invitation capable of causing a unanimous verdict although based upon different reasons and on separate evidential bases;
Is the above question is answered in the affirmative, then what is the proper procedure to be followed upon the sentencing hearing and what standard of proof in respect of aggravating factors is to be applied.
[ 14 ] The various scenarios put to the jury by Crown counsel may have significantly different penal consequences varying from touching to intercourse.
PART 4: ANALYSIS AND CASE LAW
[ 15 ] I accept defence counsel’s submissions that the closing remarks of Crown counsel noted above made to the jury at trial opened the door to an ambiguous decision of the jury in rendering a unanimous verdict. This is evident from the closing itself. Crown counsel laid out three different evidential bases on which the jury could make a finding of guilt.
[ 16 ] While these differences of opinion may co-exist in a unanimous verdict of guilty, such differences (unknown if such existed) could lead to different penal liabilities upon sentence.
[ 17 ] I will now review the relevant case law. I note that the Crown substantially agrees with the case law presented by the defence.
[ 18 ] As set out in R. v. Tuckey; R. v. Baynham; R. v. Walsh , 1985 3509 (ON CA) , [1985] O.J. No. 142 (O.C.A.), R. v. Solomon and Triumph (1984), 6 Criminal Appeal Reports (s.) 120 (Court of Appeal in England) and R. v. Kevin Brown (1984), 79 Criminal Appeal Reports 115, generally there exists no justification to ask the jury to answer questions to particularize the basis of the verdict, whether it be guilty or not guilty. In cases such as the case before me, wherein the jury may not be unanimous in the evidential basis of the verdict, the trial judge is entitled to make up his or her mind on disputed questions of fact which are relevant to sentence.
[ 19 ] As set out in R. v. Gauthier , [1996] B.C.J. No. 1469 (B.C.C.A.) , R. v. Engelhart , 1998 17950 (NB CA) , [1998] N.B.J. No. 150 (N.B.C.A.), R. v. Tempelaar , [1993] O.J. No. 3409 (O.C.A.) , and R. v. Tempelaar , 1995 133 (SCC) , [1995] 1 S.C.R. 760 (S.C.C.) where an evidential conflict at trial is left unresolved by the verdict of the jury, the trial judge must reach his or her own conclusions as to the facts surrounding the offence of which the accused was convicted applying the usual standard of proof in a criminal case.
[ 20 ] In Regina v. Cooney , 1995 707 (ON CA) , [1995] O.J. No. 945 (O.C.A.), the Court of Appeal endorsed its view from Tempelaar , determining that in cases involving ambiguous verdicts, the trial judge had an obligation to make his or her own analysis of the accused’s culpability.
[ 21 ] As set out in R. v. Holder , 1998 14962 (ON SC) , [1998] O.J. No. 5102 (Ont. Ct. (Gen. Div.)), Section 724(2) of the Criminal Code addresses the issue, however it does not remove the obligation of the trial judge to arrive at an independent determination of the relevant facts for the purpose of sentence. The trial testimony constitutes the available record for that analysis on the sentencing hearing.
[ 22 ] The Crown agrees that in a case such as this, where the indictment does not particularize the nature of the sexual assault, and when the victim of that case testified to a number of sexual assaults, it is up to the trial judge to decide what facts are relevant to sentencing after a jury has returned a verdict of guilty. The Crown also agrees with the procedure to follows as suggested by the defence and as outlined in para. 2 above.
[ 23 ] In conclusion, I find there is ambiguity in the verdict given Crown counsel’s submissions. I will therefore proceed to determine the facts regarding the sexual assault focusing specifically on the evidentiary matters raised by the defence in argument of this issue, applying the criminal standard of proof.
PART 5: FACT FINDING
[ 24 ] Mr. Roberts testified. I am mindful of R. v. W.(D.) , 1991 93 (SCC) , [1991] 1 S.C.R. 742. The defence did not raise any issue with respect to Mr. Roberts’ testimony. Clearly the jury did not believe Mr. Roberts’ evidence that he did not commit the offence. Clearly the jury was not left with a reasonable doubt about Mr. Roberts’ guilt or about an essential element of the offence. The defence did not raise these components of R. v. W.(D.) in argument. The defence focused on the complainant’s evidence and whether her evidence proved beyond a reasonable doubt that sexual intercourse had occurred without consent.
[ 25 ] It is clear from my charge and the submissions of counsel that the main issue in the trial was consent. The Crown’s theory was that touching, digital penetration and intercourse all occurred without consent. The defence position was that the touching and intercourse occurred with consent. Mr. Roberts denied that digital penetration occurred.
[ 26 ] The defence requested that I focus on whether the evidence of the complainant established that non-consensual intercourse had occurred.
[ 27 ] First, I find that digital penetration did occur without consent. The complainant’s evidence is clear in this regard. The jury rejected Mr. Roberts’ evidence. On the third question in the R. v. W.(D.) analysis, the Crown has proven beyond a reasonable doubt based on the evidence of the complainant that digital penetration occurred.
[ 28 ] With respect to whether sexual intercourse occurred without consent, I find it did based on the following:
I have carefully reviewed the complainant’s evidence, Mr. Roberts’ evidence having been rejected by the jury. It is clear from the complainant’s evidence that the sexual assault was one continuous incident - moving from touching her breasts to digital penetration to sexual intercourse. It cannot be parsed into pieces from her evidence - it was a single event. Her evidence established with clarity that she was not consenting at any time. It is inconceivable that she would ask him to stop touching her breasts and roll away from him (put her back to him), then ask him to stop the digital penetration, ask him why he was being like that when he lay on top of her and then consent to the sexual intercourse which happened immediately thereafter. Her evidence is clear, she did not consent to the sexual intercourse or any part of the incident.
On page 30 of the transcript of the complainant’s evidence, she said at about line 29, “And then I don’t remember how it, how it turned into it but he penetrated me for a minute or two”. She then answers at line 32 “With his penis”. This does not create reasonable doubt with respect to consent. Her overall evidence establishes that Mr. Roberts’ knew or ought to have known that she was not consenting to the entire incident, including sexual intercourse.
I have carefully reviewed the portions of the transcript defence counsel specifically referred to in argument and they do not establish reasonable doubt as to whether the sexual intercourse was non-consensual.
Counsel agreed before my giving my charge that the only issue was consent. The complainant’s evidence was clear it was a continuous incident and she consented to none of it. The jury asks no questions with regard to the issue.
In cross-examination of the complainant she made it clear that she said no to sexual relations.
The complainant’s evidence at trial made sense. It was logical and she acknowledged her frailties.
PART 6: CONCLUSION
[ 29 ] For the purposes of sentencing, I find that Mr. Roberts did engage in digital penetration and intercourse, both without the consent of the complainant.
Coats J.
Date: June 4, 2012