R. v. Leatherdale

R. v. Leatherdale Collection Decisions of the Court of Appeal Date 1999-08-17 Docket numbers C31223 Judges Osborne, Coulter Arthur Anthony; Catzman, Marvin Adrian; Farley, James Montague Subject Criminal Decision Content DATE: 19990817 DOCKET: C31223 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – CHARLES LAWRENCE LEATHERDALE (Appellant) BEFORE: OSBORNE A.C.J.O., CATZMAN J.A. AND FARLEY J. (ad hoc) COUNSEL: Alan W. Bryant and David Porter For the appellant Gary Trotter For the respondent HEARD: June 16, 1999 On appeal from the decision of Leitch J. dated December 4, 1998 granting certiorari and mandamus. ENDORSEMENT [1] The appellant, a medical doctor, was charged with one count of indecent assault and one count of sexual assault on a complainant who was his patient at the time of the alleged offences. According to the evidence led at the preliminary inquiry, the alleged indecent assault involved incidents of kissing and fondling in 1979 and 1980, and the alleged sexual assault involved an act of intercourse in 1980 and an attempted kissing incident in 1993. [2] At his preliminary inquiry, the appellant was committed for trial on the count of indecent assault and on the count of sexual assault that arose from the attempted kissing in 1993. He was not committed for trial for any offence arising from the act of sexual intercourse in 1980. With respect to that act, the Crown acknowledged that the offence of sexual assault was not known to law prior to 1983. The preliminary inquiry judge considered, but declined to order, the appellant to stand trial for the offence of rape in relation to that act. [3] In reaching that conclusion, he directed his mind to the issue of consent and said: Here the only evidence is from the complainant that even though she gave consent she didn’t feel that it was a true consent. It was never communicated to the defendant. She never indicates that that was the situation. It is only some time later that she asserts that it is because of the relationship that she truly had not consented. But in my view, on the evidence, and I thought the complainant was extremely fair in that regard, she said simply that even objectively a reasonable person looking at the consent as given would conclude that there was agreement to the activity. In my view, even though it might, I suppose stretching the point, be some little bit of evidence as it may relate to consent which may be considered by a jury, in my view it is so minuscule, I don’t mean to downgrade the act complained of, I mean minuscule as it applies to the evidence, it is such that no jury properly instructed could render a verdict of guilty under these circumstances to a charge of sexual intercourse without the consent of the complainant. (Emphasis added) [4] The Crown applied for an order of certiorari or mandamus in respect of the offence arising from the act of sexual intercourse. Leitch J. granted the application, and ordered that the appellant be committed to stand trial for rape in respect of that act. After setting out the portion of the preliminary inquiry judge’s reasons italicized above, Leitch J. said: In my view, the provincial judge conducting the preliminary inquiry in coming to this conclusion conducted an assessment of the factor of the relationship between the parties, and in so doing, he weighed and interpreted the evidence and therefore, conducted an analysis which I am satisfied exceeded his jurisdiction. Accordingly, having concluded that there was a jurisdictional error committed by the judge conducting the preliminary inquiry with respect to the incident of sexual intercourse, I am satisfied that the Crown’s application should succeed. [5] The appellant appeals from the decision of Leitch J. [6] In this court, the appellant submitted that Leitch J. erred in concluding that: (a) the preliminary inquiry judge had erred in weighing the evidence adduced against the appellant; and (b) the preliminary inquiry judge had not erred in holding that the power or authority imbalance between the parties was a factor to be considered in determining whether the complainant had consented to the act of sexual intercourse. [7] In support of his first submission, the appellant argued that the preliminary inquiry judge, rather than improperly weighing the evidence, had simply sought to form an opinion whether or not there was sufficient evidence upon which a reasonable jury properly instructed could convict: United States of America v. Sheppard (1976), 30 C.C.C. (2d) 424 (S.C.C.) at 427. We do not agree. In our view, in performing the exercise described in the italicized portion of his reasons above, the preliminary inquiry judge was impermissibly engaging in an assessment of the weight of the complainant’s evidence, and Leitch J. was correct in concluding that he had thereby exceeded his jurisdiction: Re Skogman and the Queen (1984), 13 C.C.C. (3d) 161 (S.C.C.) at 173-174. [8] In support of his second submission, the appellant noted that the Crown had acknowledged that the proper charge in respect of the act of sexual intercourse in 1980 should have been rape, not sexual assault. He argued that the preliminary inquiry judge had appropriately considered whether there was sufficient evidence of lack of consent to warrant a committal on the charge of rape, as that offence was understood in 1980, and had appropriately determined that there was not such sufficient evidence. In particular, the appellant submitted that the circumstances that may vitiate consent to an act of sexual assault set out in ss. 265(3)(d) and 273.1(2)(c) of the Criminal Code (which came into force subsequent to 1980) were not recognized as vitiating consent to a charge of rape in 1980 and that the preliminary inquiry judge was thus in error in reaching the conclusion he did. [9] We do not accept this submission. We note that there is some authority for the view of the law as understood by the preliminary inquiry judge and by Leitch J.: see R. v. Audet (1996), 106 C.C.C. (3d) 481 (S.C.C.) at 493; R. v. Matheson (1999), 134 C.C.C. (3d) 289, ¶56 ff. In any event, we agree with Leitch J. that the conclusion of the preliminary inquiry judge on this issue was a question of law that did not go to jurisdiction and was not reviewable on certiorari: Dubois v. The Queen (1986), 25 C.C.C. (3d) 221 (S.C.C.) at 224. [10] While the foregoing is sufficient to dismiss this appeal, we feel that we should comment upon an alternative submission made by the Crown that, regardless of our disposition of this appeal, it was and still is open to the Crown, pursuant to s. 574 of the Code, to prefer an indictment against the appellant on a charge of rape. The appellant was never charged with, or discharged on, that offence and, as noted, the preliminary inquiry judge refused to commit him for trial for any offence in relation to the act of sexual intercourse. We are inclined to agree with the Crown that, having regard to the language of ss. 574(1)(b) and 577(b) of the Code, an indictment on the charge of rape could be preferred against the appellant without the necessity of obtaining the consent of the Attorney General. However, in light of our determination that the appeal from the order of Leitch J. must be dismissed, it is not necessary for us to express any concluded view on the Crown’s alternative submission. [11] The appeal is dismissed. Signed: “C.A. Osborne A.C.J.O.” “M.A. Catzman J.A.” “J.M. Farley” (ad hoc)