Successful appeal focuses on trial judge’s charge to jury

Law360 Canada (July 16, 2024, 10:30 AM EDT) --

John L. Hill

Justice David Aston convicted A.B. of one count of sexual assault on Sept. 24, 2021. He was acquitted of four other charges of sexual assault and choking. A.B. appealed his conviction to the Ontario Court of Appeal mainly on the grounds that Justice Aston erred in his charge to the jury. A.B. claimed the errors were so significant that a new trial ought to be ordered (R. v. A.B., 2024 ONCA 446).

A.B. started a relationship in November 2015. He was 26 years old, and his new girlfriend was 18. By March 2016, the relationship had progressed to the point where the two decided to move in together. Before their cohabitation, the girlfriend entered the hospital to have her appendix removed. Following surgery, she experienced considerable pain and had difficulty walking. She was given medical advice to refrain from sexual intercourse for six weeks after surgery. She returned to A.B.’s parents’ home once released from the hospital. She spent most of the days in bed until she felt well.

Four days following the surgery, while recuperating, she recalled that A.B. returned from work, where he had a rough day. Upon returning to his parents’ home, he went directly to bed, where he had intercourse with his girlfriend.

A.B.’s partner recovered from surgery and took up residence with him until they split in November 2016. She became an in-patient at a hospital due to mental health problems. While there, she spoke to another patient who complained of having been sexually assaulted. This caused the former girlfriend to believe that she, too, had been molested. She went to the police and testified against A.B. at trial.

Defence counsel in the appeal raised three issues regarding perceived defects in the trial judge’s charge: (a) inadequate instructions on prior inconsistent statements and lying under oath, (b) erroneous instructions on demeanour and (c) erroneous instructions on wilful blindness.

At the outset, the appeal court reminded itself that perfection in a judge’s charge is not expected. It is sufficient that a jury be given the tools necessary to find guilt in accordance with the law and the evidence (R. v. Lozada, 2024 SCC 18; R. v. Abdullahi, [2023] S.C.J. No. 19).

The court swiftly rejected the first two grounds listed above. It noted that the judge had carefully included instructions on treating inconsistencies to differentiate between an honest mistake and a lie. It also dismissed the objection that the judge had fallen into the trap of over-reliance on a witness’s demeanour in assessing credibility (R. v. Chacon-Perez, 2022 ONCA 2). Neither the Crown nor the defence had objected to the judge’s draft instructions regarding demeanour, and there was no reason to suspect that failure to outline the risks of over-reliance (although it would have been preferable for him to do so) had any impact on the outcome.

The judge’s instructions faltered in not separating what the accused knew from what he should have known. The charge erred in the instruction on wilful blindness by suggesting the accused should be judged by what a reasonable person should know about consent being withheld rather than what this accused understood. This was not an innocuous error. Recklessness and wilful blindness are distinct concepts (R. v. Briscoe, 2010 SCC 13; R. v. Morrison, 2019 SCC 15). The charge ought to have directed the jury to distinguish what the accused subjectively knew or understood at the time of the sexual activity (Sansregret v. The Queen, [1985] 1 S.C.R. 570).

Even though the appeal court found the charge deficient in its failure to instruct on the difference between recklessness and wilful blindness, the Crown urged the appeal court to apply the curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code and dismiss the appeal since the error was trivial or harmless or where a conviction would be inevitable (R. v. Samaniego, 2022 SCC 9; R. v. Sekhon, 2014 SCC 15).

Here, there was the concern that a jury may have committed a reasoning error in the absence of proper instruction on wilful blindness and recklessness. The fact that the jury convicted the accused only on the first count suggests that it could have been induced to find guilt because the jury believed the accused should have known that the complainant could not comfortably or safely engage in sexual intercourse four days after her surgery. Conviction was not inevitable. The curative proviso was not applied, so a new trial was ordered.

This appeal could have been avoided had the trial judge restated the National Judicial Institute Model Jury Instructions or Watt’s Manual of Criminal Jury Instructions. Similarly, counsel at trial, both Crown and defence, ought to have compared Justice Aston’s proposed charge to the model instructions that are commonly followed.

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. He 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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