R. v. Prevost

R. v. Prevost Collection Decisions of the Court of Appeal Date 1999-12-23 Docket numbers C31414 Judges Carthy, James Joseph; Charron, Louise Vivianne; Sharpe, Robert J. Subject Criminal Decision Content DATE: 19991223 DOCKET: C31414 COURT OF APPEAL FOR ONTARIO CARTHY, CHARRON and SHARPE JJ.A. BETWEEN: ) ) Paul W. Slocombe, HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) M. David Lepofsky, ) for the respondent KEVIN PREVOST ) ) Appellant ) ) Heard: December 14, 1999 ) On appeal from his conviction on November 8, 1998 by Mr. Justice Arthur C. Whealy, sitting with a jury, and from the sentence imposed on November 18, 1998 BY THE COURT: [1] Following his trial before Whealy J. and a jury, the appellant was convicted of sexual assault causing bodily harm, unlawful confinement, uttering a death threat and break and enter into a dwelling house and was sentenced to a total term of imprisonment of four years in addition to fifteen months of pre- trial custody. He appeals against conviction and seeks leave to appeal his sentence. [2] All offences arose out of a series of events occurring on the evening of August 16, 1997. The complainant testified that she knew the appellant as a panhandler whom she had seen a few times on the street during the previous two weeks and with whom she had had some casual friendly conversations. On the evening in question, she spent a few hours with him drinking a few beers and smoking marijuana. She testified that the appellant then started to talk about how he found her attractive and how he would like her to be his girlfriend. He also asked her to show him her breasts. She testified that the turn in the conversation made her uncomfortable and she therefore decided to leave. She left the appellant outside her apartment, went inside and went to bed. [3] Some time later, the complainant woke up and saw the naked appellant coming out of her closet. She testified that the appellant jumped on her and forcibly committed acts of fellatio and intercourse against her will. She further testified that she eventually freed herself, went to the kitchen, retrieved a meat cleaver and, in an effort to scare the appellant away, threatened him with it. A struggle ensued, the appellant bit her left arm and the weapon dropped to the floor. The complainant then ran into the street, naked and screaming that the appellant was going to kill her. The appellant immediately left the apartment, went to a friend’s place, shaved off his beard and cut his hair in an attempt to change his appearance. The police eventually attended at the complainant’s apartment. Some evidence of forcible entry to the door was noted. The appellant was arrested and charged later that night. [4] The appellant testified. His version of the events was similar in many respects to that of the complainant except that he testified that all sexual acts between them were consensual. He explained that the complainant then, suddenly and without apparent reason, ran to the kitchen, got a meat cleaver and tried to attack him with it. He explained that he bit her arm to defend himself from this attack. [5] The appellant raised numerous grounds of appeal against conviction in his factum. Three of the grounds were abandoned at the hearing and some of the remaining grounds were somewhat modified in oral argument. In essence, the appellant advances four grounds. First, he contends that the trial judge’s charge to the jury on reasonable doubt was incomplete in that it made no reference to the fact that a reasonable doubt could arise from “a lack of evidence”. Second, the appellant submits that the trial judge erred in failing to put the defence of intoxication to the jury in relation to the charge of uttering a death threat. Third, he contends that the trial judge effectively placed a burden on the appellant by raising consent as a defence rather than referring to the lack of consent as a necessary element of the offence of sexual assault. Fourth, the appellant argues that the trial judge erred in failing to define self-defence for the jury. Instruction on reasonable doubt [6] Counsel for the appellant relies on the suggested wording in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) in support of his argument that the instruction to the jury on reasonable doubt was incomplete. He argues that the importance in this case of telling the jury that a reasonable doubt could arise from “a lack of evidence” is evidenced by the fact that the jury asked a number of questions during the course of their deliberations. [7] We see no merit to this argument. It is not mandatory to use the exact formulation in Lifchus. It is the overall effect of the charge which matters. In our view, the trial judge’s instructions to the jury on reasonable doubt adequately conveyed the necessary principles which were to govern the jury in its deliberations. The instructions would not have misled the jury into believing that a reasonable doubt could not arise from a lack of evidence. Defence of intoxication [8] The appellant submits that the evidence gave rise to the defence of intoxication in relation to the offence of uttering a death threat and that, consequently, it was incumbent upon the trial judge to instruct the jury accordingly. [9] We do not agree. While there was evidence that the appellant had consumed alcohol and smoked some marijuana, the evidence of intoxication consisted of a single conclusory statement by the complainant in her evidence that the appellant was “very drunk”. No other evidence of intoxication was advanced and the issue was not pursued. The defence of intoxication was not raised by counsel at trial and no objection was made to the charge on this point. [10] In all the circumstances, we are of the view that there was no air of reality to this defence. Therefore, it was not incumbent upon the trial judge to instruct the jury on the defence of intoxication. Instruction on consent [11] In our view, the reference in the charge to consent “as a defence” did not place any burden on the appellant as contended. The reference must be viewed in context. The trial judge correctly instructed the jury that the burden was on the Crown to prove all of the essential elements of the offence, one of which was the lack of consent by the complainant. The reference to consent “as a defence” to the included offences of “assault” and “sexual assault” simply reiterated the fact that the failure to prove lack of consent would result in an acquittal on those offences. [12] The trial judge was also correct in further instructing the jury that consent was not a relevant consideration in so far as the infliction of bodily harm was concerned. However, the manner in which he gave this further instruction was confusing. He told the jury that consent was a defence to the included offences of assault and sexual assault, and added “but if you find that there was a sexual assault which caused bodily harm, for the whole offence, consent is not a defence”. The trial judge handed a verdict sheet to each member of the jury to assist them in sorting out the various offences and available verdicts. The verdict sheet was not produced on appeal however, it would appear from the transcript that the trial judge was referring to the handout when he gave those instructions. Defence counsel at trial objected to this portion of the charge. He submitted that both the instruction and the verdict sheet were confusing to the jury in that they may have left them with the impression that if they were satisfied that the appellant had intentionally inflicted bodily harm to the complainant (the bite on the arm), consent was no longer available as a defence to the sexual assault. [13] We agree with the appellant’s submission. The charge on this point was incorrect on its face and, on the whole, confusing. The problem was exacerbated by the trial judge’s failure to relate the facts to the issues. Even though the facts were relatively simple, the application of the law to those facts was somewhat complex given that the sexual acts in the bedroom, at least on one version, could be viewed as entirely separate from the subsequent infliction of the bodily harm. The jury had to sort out all those facts in their consideration of the single offence of sexual assault causing bodily harm. This was not an easy task. It is clear from counsel’s objection that the confusion was apparent to those present in the courtroom. The trial judge himself conceded that his instructions were confusing but he did not want to bring back the jury and “confuse them further.” [14] In our view, it was incumbent upon the trial judge to recharge the jury on the issue of consent. In all the circumstances, it would be unsafe to conclude that the jury would have understood that lack of consent was a necessary element of the underlying offence of sexual assault regardless of their conclusions with respect to the incident with the meat cleaver and the biting. [15] Consequently, we would give effect to this ground of appeal and quash the conviction with respect to the offence of sexual assault causing bodily harm. In light of this result, it is not necessary to deal with the ground of appeal relating to the instruction on self-defence other than to comment that the instructions on this issue were also confusing. Again here, in addition to defining self-defence, it would have been important to relate the facts that were relevant to this issue so as to make it clear to the jury that self-defence arose only in relation to the bite to the arm and had no relevance to the underlying offence of sexual assault. Appeal against sentence [16] The trial judge imposed a total sentence of four years’ imprisonment as follows: (a) sexual assault causing bodily harm: 4 years (b) forcible confinement: 2 years concurrent (c) uttering a death threat: 1 year concurrent; and (d) break and enter and commit an indictable offence: 4 years concurrent. [17] It would appear from this sentence that the trial judge imposed a sentence of 4 years in relation to the offence of break and enter based on the jury’s finding that the appellant had committed the offence of sexual assault causing bodily harm. In keeping with the result of this appeal, it is our view that the sentence on that offence should be reduced to 2 years concurrent. [18] Otherwise, we see no reason to interfere with the sentence. The trial judge considered all relevant factors, more particularly the gravity of the offences, the accused’s background and lengthy criminal record and the principles of sentencing. He made no error in principle and, in all the circumstances, it cannot be said that the sentence on the remaining charges is excessive. [19] The appeal against the conviction on the offence of sexual assault causing bodily harm is allowed, the conviction is quashed and a new trial is ordered. The appeal against conviction is otherwise dismissed. In light of this result, it is not necessary to deal with the sentence appeal on the charge of sexual assault causing bodily harm. Leave to appeal against sentence on the other offences is granted, the appeal is allowed in relation to the offence of break and enter and the sentence on that offence is reduced to two years imprisonment to be served concurrently. The appeal against sentence is otherwise dismissed. RELEASED: December 23, 1999 (signed) "J. J. Carthy J.A." (signed) "Louise Charron J.A." (signed) "Robert J. Sharpe J.A."