Sex assault decision focuses on jury instructions

John L. Hill

The appeal of a sexual assault conviction is always difficult. It is much more difficult when the allegation is about a mature male sexually assaulting an underage female before a jury. The Ontario Court of Appeal recently dismissed such a case (R. v. I.W. 2022 ONCA 251).

I.W., the appellant, at the time of the alleged offence was 38 years old. The complainant, M.B., says she was 15. Although both I.W. and M.B. agreed that the two had sexual intercourse multiple times over the period of a year, there was disagreement as to when the relationship turned sexual. M.B. swore that it was at a New Year’s party in Oshawa in 2015 when she was 15 and legally unable to consent. I.W.’s evidence was that M.B. had sent him a text in mid-May, 2016 acknowledging she was now “legal.” Indeed, all the Facebook messages entered into evidence were posted after M.B.’s 16th birthday. The liaison between I.W. and M.B. halted when I.W.’s daughter, M.S., and best friend of M.B., saw the text messages and accused M.B. of seducing her father. A fight broke out between the young women. Police were called and M.S. was charged and was subsequently convicted of assault. The charges against I.W. were laid in 2017.

When the matter came on for trial in April 2019, I.W. elected to be tried by judge and jury. He was convicted of three counts of sexual offences but acquitted on a charge of uttering a threat. I.W. appealed in February 2022 with the above-cited decision being handed down on March 28.

One of the main grounds of appeal was that Superior Court Justice Stephen T. Bale failed to call a mistrial or inadequately instructed the jury after an outburst by M.B. when she insulted defence counsel and uttered profanities that included calling I.W. a rapist. The trial judge excluded the jury and asked trial counsel to comment but would not declare a mistrial. Instead, he recalled and cautioned the jury that giving evidence is not a common experience and some people react negatively under such pressure. The jury should not use M.B.’s outburst to conclude I.W. was of bad character and likely to commit the crimes alleged.

The Court of Appeal concluded that even though a stronger instruction to the jury could have been given, the limited jury instruction was sufficient.

A second ground for appeal was that the Crown used a prior consistent statement and the jury was not instructed on the limited use of such evidence. The court noted that while prior consistent statements are presumptively inadmissible (R. v. Stirling 2008 SCC 10), such statements can be used, according to Stirling, when the Crown is trying to rebut that a witness’ statement is of recent fabrication and sometimes even when the alleged fabrication was not recent. Although the trial judge did not give reason for allowing the admissibility of M.B.’s father’s evidence on the timing of M.B.’s disclosure, the ruling was consistent with the exception noted in Stirling.

The third ground was that the Crown in its closing address misstated when I.W. moved from Oshawa to Brooklin, Ont. This was significant because M.B. had claimed she was 15 and having sex in the Brooklin apartment. However, if the move took place in June, as I.W. insisted, the complainant would have been 16. However, the Appeal Court determined that no harm was done since the judge in his charge corrected the misinformation.

The Court of Appeal also refused to admit fresh evidence on appeal. Its reason for such denial is in accordance with the standards set out in R. v. Palmer [1980] 1 S.C.R. 759 being admissibility, cogency and due diligence.

One piece of new evidence the appellant wanted was documentation to substantiate the date he moved into the Brooklin apartment. Along with an update to his driver’s licence, the appellant also wanted to show he had updated his address under the Sexual Offender Information Registration Act (SOIRA) that was in place when he moved to Brooklin in June.

Everyone in Canada charged with an indictable offence punishable by five years or more of imprisonment has a right to a jury trial. The appellate counsel for the defence seems to have asserted the best possible arguments for the accused. However, the question remains that with the nature of the charge, the respective ages of the parties involved and the accused already under a SOIRA order, why did the accused opt for a jury?

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

Photo credit / Golden Sikorka ISTOCKPHOTO.COM

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.