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| John L. Hill |
The appeal court examined the following facts: on Feb. 5, 2020, a 15-year-old — X, as she’s referred to in the judgment — ran away from home. X was at a mall with her boyfriend but had nowhere to stay that night. X thought that perhaps her friend, referred to in the judgment as Ms. B, might be able to help her. X called Ms. B and asked if she could stay at her house. Ms. B refused,
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Ms. B suggested that X meet up with Cervantes, a gentleman named Makuag and another youth, who were all at the mall. When X’s boyfriend learned that X was planning to go to Cervantes’ home with three male acquaintances, a heated argument ensued. The boyfriend lost the argument, and X went with the three men to Cervantes’ home.
Cervantes told X that she had to enter through a basement window because his mother had strict rules and he was not allowed to have guests stay overnight. Once downstairs, the four gathered in the small bedroom, ate and listened to music. X testified that a violent, non-consensual sexual assault by Cervantes, Makuag and the youth occurred over an extended period. Both Cervantes and Makuag testified that their sexual interactions with X were consensual.
The trial focused on the reliability and credibility of the witnesses. It also depended on the meaning of two words used to describe what happened. Ms. B. said that the next day, she received a text suggesting that Makuag had “trained” X or had “run a train” on X. The terminology was described as a sociolect meaning a “threesome.”
In the days following the alleged assault, X attempted to build her case that the men’s sexual aggression had victimized her. In her texts to Ms. B., she used the term “battried,” which was another sociolect for “gang bang.”
At trial, the Crown used the words “trained” or “run a train” and the word “battried” to mean without consent. Defence counsel argued there might have been a threesome, but that does not imply that consent was missing. This terminology is commonly used in some youth circles, rap lyrics or street slang but is not typically employed in respectful or formal conversation. In instructing the jury, the trial judge did not define the terminology used by the parties involved.
The Alberta Court of Appeal observed that when reviewing jury instructions, an appellate court must adopt a functional approach and evaluate alleged errors in the context of the evidence, the entire charge and the trial as a whole; the overall impact of the charge is what counts. The key question is whether the jury was “properly equipped” with the relevant law to interpret the evidence. A properly equipped jury must receive instructions that are both accurate and sufficient to decide the case: R v. Abdullahi, 2023 SCC 19 at paras. 4, 34-56 and 72; R. v. Al Aalak, 2023 ABCA 250; R. v. Barton, 2019 SCC 33.
Defence counsel argued that the Crown’s implied definition involving non-consensual sex would unjustly be interpreted as Cervantes’ confession to a crime. Moreover, the prejudice caused by the way Crown counsel used phrases like “running a train” and “battried” in their closing jury address was worsened in Makuag’s case, where there was no evidence of his use of these terms. The overall instruction was that Cervantes’ out-of-court statements were not admissible against Makuag and could not be used in his deliberations.
On appeal, the Crown argued that the convictions should stand and that it was appropriate for the appeal court to apply the curative proviso. However, the appeal court concluded that the Crown may only rely on the curative proviso if it demonstrates that (1) the error of law is “harmless” or, (2) despite a potentially prejudicial legal error, there is an “overwhelming” case against the accused: R. v. Abdullahi, 2023 SCC 19. In this instance, the case against both accused men was not overwhelming.
Because the evidence supporting the conviction was weak, the appeal court did not need to find fault with the jury instruction to overturn the convictions. With convictions set aside, a new trial was ordered.
This case indicates that when sociolects are involved in constructing a case, everyone in the court must adhere to the same translation.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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