R. v. Sazant

R. v. Sazant Collection Decisions of the Court of Appeal Date 2003-10-17 Docket numbers C37999 Judges Charron, Louise Vivianne; Feldman, Kathryn N.; Simmons, Janet M. Subject Criminal Decision Content DATE: 20031017 DOCKET: C37999 COURT OF APPEAL FOR ONTARIO CHARRON, FELDMAN and SIMMONS JJ.A. BETWEEN: HER MAJESTY THE QUEEN Respondent - and - MARVIN SAZANT Appellant Alan D. Gold, J. Douglas Crane, Q.C. and James C. Morton for the appellant Jennifer Woollcombe for the respondent Heard: April 3, 2003 On appeal from a judgment of Justice Todd L. Archibald of the Superior Court of Justice dated March 7, 2002, granting certiorari setting aside the order of Justice John C. Moore of the Ontario Court of Justice dated May 1, 2001, discharging the appellant. FELDMAN J.A.: [1] The appellant was originally charged with four counts of historical sexual offences. Following a preliminary inquiry, the appellant was committed for trial on two counts, one count of indecent assault and one count of gross indecency against a male under the age of fourteen years. The appellant was also discharged on two counts, one count of indecent assault and one count of gross indecency against another male who was over fifteen years of age, fourteen being the age of consent at the time. The Crown sought judicial review of the orders discharging the appellant. The Superior Court judge set aside the two discharges and committed the appellant for trial on the second two charges. The appellant appeals that decision to this court. [2] For the reasons that follow, I would allow the appeal and restore the disposition made by the preliminary inquiry judge discharging the appellant, on the basis that he made no jurisdictional error in his decisions; therefore, there was no basis to set those decisions aside. THE DECISION OF THE PRELIMINARY INQUIRY JUDGE [3] The appellant was charged that between October 1, 1981, and March 31, 1982, he indecently assaulted and committed gross indecency on the complainant, R.B.M., a male. The appellant is a medical doctor, but was not the complainant's doctor. He met the complainant when he was an assistant coach of the complainant's basketball team. The complainant was born in December 1966, and therefore was fourteen and three-quarters to fifteen and one-quarter years old at the time of the impugned events. [4] The complainant described two incidents of a sexual nature. Each incident took place in the appellant's basement. On both occasions the activity between the two consisted of both parties being naked, kissing on the lips, use of or suggested use of ropes to tie the complainant's wrists to the bed, rubbing of the complainant's genital area, the appellant straddling the complainant's chest, the insertion of the appellant's penis into the complainant's mouth, ejaculation by the appellant on at least one occasion. [5] The preliminary inquiry judge instructed himself as follows on the law and also on the onus to be applied at a preliminary inquiry: 1) the onus is on the Crown to adduce sufficient evidence for a committal for trial; 2) the test is: "[I]s there any evidence upon which a reasonable jury properly instructed could convict-"; 3) the Crown must adduce sufficient evidence on each essential element of the offence; 4) it is not the function of the preliminary inquiry judge to weigh the evidence or assess credibility or reliability; 5) it would be an error to discharge an accused because the evidence on an essential element is so minuscule that no jury properly instructed could render a verdict of guilty; 6) where more than one inference can be drawn from the evidence, the court must consider those inferences that favour the Crown. [6] Dealing with the first count, indecent assault of a male, the judge noted that because the complainant was over the age of fourteen, and, at the time, consensual activity between males over fourteen years of age was not an offence, the Crown had to adduce some evidence that the complainant did not consent to the activity that might be considered indecent. [7] The complainant described his relationship with the appellant that began when he was thirteen years old and the appellant was his assistant basketball coach. He said that they spent time together at games, and that the appellant paid more attention to him than the others. He picked him up at school sometimes, took him out to lunch and gave him some money. Eventually the appellant asked him if he wanted to come to his home and rake leaves for money. When the complainant arrived, the appellant gave him a tour of his home including the basement where he had his pool table and bedroom. It was in the basement that the sexual activity occurred. [8] Crown counsel did not ask the complainant whether he had consented to the activity or whether he had told or indicated to the appellant he did not want to do it. Crown counsel asked the complainant after the complainant described the appellant pushing his penis back and forth in and out of his mouth during the first incident: Q. Is this something that you wanted to be doing? A. No. Then after the complainant described the second incident, which occurred a few weeks after the first, Crown counsel asked: Q. Did you want to be engaging in that kind of activity on that day? A. No. I think that - I think that I really wanted to spend time with him, but not doing that. [9] After the two incidents the complainant continued to see the appellant, but avoided going to his home. The appellant asked him why he was doing that and eventually told him that if he was not going to come to his house and spend time with him that he could not be his friend anymore. Crown counsel asked the complainant: Q. Why would you avoid that issue? A Because I didn't want to go. Q. And why didn't you want to go? A. Because I didn't want to get involved in the sexual escapades. [10] The judge found that there was absolutely no evidence of non-consent in either words or actions and that the complainant was a consenting participant in the activity he described. He concluded: "The evidence suggests that at some point in time after the sexual activity, [the complainant] decided he may have regretted what he had done. Nevertheless, on the evidence before me, there's no evidence that [he] did anything but consent at the relevant time." The judge concluded, therefore, that a reasonable jury properly instructed could not find the appellant guilty of indecent assault. [11] For the second count, gross indecency, consent was not a defence where the complainant was under the age of twenty-one at the time. The judge reasoned, however, that the absence of evidence of non-consent was a factor in deciding whether the impugned activity could amount to gross indecency. The case law had defined gross indecency as "a very marked departure from the decent conduct expected of the average Canadian in the circumstances that you find existed": R. v. St. Pierre (1974), 17 C.C.C. (2d) 489 at 496 (Ont. C.A.), to be based on an objective standard: R. v. Quesnel (1979), 51 C.C.C. (2d) 270 at 280 (Ont. C.A.). [12] The judge considered as relevant factors the existence or absence of consent, the ages of the parties and the difference in their ages, the time and place, the relationship between the parties, and the activity itself. He then concluded that "a reasonable jury properly instructed could not find that the activity engaged in on the two occasions was grossly indecent." THE DECISION OF THE SUPERIOR COURT JUDGE ON REVIEW [13] On the application by the Crown for judicial review, the reviewing judge identified the issue before him in several ways: 1) whether or not there was evidence of lack of consent by the complainant; 2) "whether or not the evidence against the accused is 'sufficient' to put the accused to his trial"; 3) whether the preliminary inquiry judge applied the wrong test for sufficiency; 4) whether the preliminary inquiry judge decided an issue reserved for the jury in his assessment that there was no evidence of lack of consent. [14] The reviewing judge agreed that lack of consent is an essential element of the offence of indecent assault. He referred to the case of R. v. Ewanchuk, [1999] 1 S.C.R. 330, for the proposition that consent is determined by the subjective state of mind of the complainant at the time of the impugned touching. He then repeated the evidence set out above, where the complainant was asked if he wanted to do what he was doing with the appellant in the first incident, if he wanted to be engaging in that kind of activity on the day of the second incident, and finally, why he did not go back to the appellant's home after the two incidents. The reviewing judge considered that evidence to be "clear evidence" that the complainant was not consenting to the two sexual occurrences. [15] The reviewing judge noted that this evidence, while referred to in argument before the preliminary inquiry judge, was not mentioned in his reasons. The reviewing judge concluded that the preliminary inquiry judge made a jurisdictional error; by not considering the evidence, he failed to consider the whole of the evidence (s. 548 of the Criminal Code, R.S.C. 1985, c. C-46). Alternatively, if the preliminary inquiry judge did consider that evidence, but perceived that it only reflected later regret by the complainant rather than lack of consent at the time, then the reviewing judge stated that he did not agree with that conclusion. He therefore granted certiorari and ordered that the appellant stand trial on the indecent assault charge. [16] On the gross indecency charge, the reviewing judge agreed with the preliminary inquiry judge that because consensual sexual activity was not intended to be captured by the offence, consent or lack of consent was a material factor in determining whether the impugned conduct amounted to gross indecency. Having concluded that there was evidence of lack of consent here, taken together with the thirty-year age disparity between the men and the nature of the sexual acts, the reviewing judge found that there was evidence upon which a reasonable jury properly instructed could convict. He found that the preliminary inquiry judge made a jurisdictional error by deciding an issue that was for the jury. Consequently he also quashed the second discharge and ordered that the appellant stand trial on the gross indecency charge as well. ANALYSIS The Applicable Legal Principles [17] The issue before this court, which was also before the Superior Court judge on review, is whether the preliminary inquiry judge made a jurisdictional error in arriving at his decision not to commit the appellant to stand trial on the two charges. In particular, if he erred in concluding that there was no evidence of lack of consent, was that a jurisdictional error, or was it an error made within his jurisdiction. [18] Both the Supreme Court of Canada and this court have recently considered the scope of review on certiorari of the decision of a preliminary inquiry judge. In R. v. Russell, [2001] 2 S.C.R. 804 at para. 19, the Supreme Court of Canada restated the limited scope for certiorari review: "[R]eview on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached." [19] In R. v. Deschamplain (2003), 186 O.C.A. 389, this court compared the effect of a preliminary inquiry judge committing an accused for trial where there was no evidence of an essential element of the offence, with discharging an accused by wrongly concluding that the evidence was insufficient to warrant committal. The first error is jurisdictional: the judge has no jurisdiction to commit an accused where there is no evidence of an essential element of the offence. The second error, however, is made within the judge's jurisdiction and is not reviewable. The court referred to Russell, supra, where McLachlin C.J.C. acknowledged that the effect is to treat the Crown and the accused differently on review, but pointed out that the difference reflects the principle of fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms: The discrepancy that troubles the Crown is not, in my view, disturbing. As I note above, the governing principle is the same whether an error is challenged by the Crown or by the accused. While it is true that the effect of this principle is that errors as to the essential elements of the crime will, as a general rule, be reviewable when challenged by the accused but not when challenged by the Crown, this disparity reflects the balance of harms: a wrongful discharge does not raise the possibility of a violation of s. 7 of the Canadian Charter of Rights and Freedoms; by contrast, I think it clear that committing an individual to stand trial on a charge for which there is no evidence on one of the essential elements would violate the principles of fundamental justice. I note, moreover, that in circumstances such as were at issue in Tremblay, supra, the Crown is free, subject to the requirements of s. 577 of the Criminal Code, to lay a new information or prefer an indictment There is no analogous remedy available to the accused [emphasis in original] (para. 29). [20] In Deschamplain, this court specifically rejected the submission that a failure by the preliminary hearing judge to consider "the whole of the evidence" amounts to a jurisdictional error because the judge has not followed the mandatory provision of s. 548(1)(b) of the Criminal Code. The court noted that if that were the case, virtually every error of law would be a jurisdictional error, which is contrary to numerous authorities including R. v. Dubois, [1986] 1 S.C.R. 366. The Indecent Assault Charge [21] I agree with the reviewing judge that the preliminary inquiry judge erred when he found that there was no evidence of lack of consent. Absence of consent is subjective and is to be determined by the complainant's "subjective internal state of mind towards the touching at the time it occurred." Ewanchuk, supra, at para. 26. The complainant said that he did not want to be engaging in the sexual activity with the appellant. On its face, that constitutes some direct evidence of lack of consent. [22] The preliminary inquiry judge made two important factual findings with respect to the element of lack of consent. He first stated that there was no evidence of lack of consent by words or actions. He also concluded that the evidence suggested that, while the complainant may have come to later regret his participation in the sexual activity, there was no evidence that he did "anything but consent at the relevant time." [23] In making these two findings, the preliminary inquiry judge could have erred in one of three ways. However, each of these types of error is an error within his jurisdiction and not subject to review on certiorari. [24] If the preliminary inquiry judge believed that evidence of lack of consent required words or conduct by the complainant to communicate to the appellant that he was not consenting, as opposed to merely an internal state of mind that he did not want to participate in the sexual activity, then the judge erred in law. [25] If he failed to take into account the evidence that the complainant did not want to be engaging in the sexual activity, then he also erred in law. [26] If the judge understood from that testimony that the complainant did not want to engage in the sexual activity, but only came to that view afterwards and not at the time, and if he failed to appreciate that the complainant's evidence was capable of constituting evidence of lack of consent, that was an error in perception of the evidence made while exercising his jurisdiction to hear the evidence and make findings as to whether it was evidence of an essential element of the offence charged. [27] Because each of these types of error is an error within the jurisdiction of the judge and not subject to judicial review, the reviewing judge erred in his conclusion that these errors were jurisdictional. The reviewing judge found that the preliminary inquiry judge failed to consider the whole of the evidence, or alternatively, that he did not agree with the preliminary inquiry judge's understanding of the evidence. Neither is a ground for granting certiorari. [28] The only way in which the erroneous conclusion by the preliminary inquiry judge that there was no evidence of lack of consent could be a jurisdictional error is if he rejected or disbelieved the complainant's evidence that he did not want to be engaging in the sexual activity at the time. If the preliminary inquiry judge had made a finding of credibility against the complainant, that would be a jurisdictional error. However, I see no basis in the reasons for concluding that the preliminary inquiry judge proceeded in that way. He properly instructed himself on the tests to be applied at the opening of his reasons: that where there was a scintilla of evidence, he must commit; that he was not to weigh the evidence or assess credibility; and, that all available inferences from the evidence must be made in favour of the Crown. On my reading of the reasons, the trial judge appeared to have erred in law by misunderstanding that consent was to be determined by the complainant's actions and words. The Gross Indecency Count [29] The finding of no evidence of lack of consent played a determinative role in the preliminary inquiry judge's conclusion that the conduct in question, being consensual, could not amount to gross indecency. Similarly, the opposite finding by the reviewing court that there was evidence of lack of consent was an important factor in that court's conclusion that the conduct in question could amount to gross indecency. [30] The reviewing judge found that the preliminary inquiry judge made an error of jurisdiction, not by applying the wrong test for sufficiency of the evidence, but by deciding an issue that is reserved for another forum. I understand the reviewing court judge to be saying that the preliminary inquiry judge did not err in his test of what would be sufficient conduct for a conviction for gross indecency, but rather, that he decided the preliminary issue of lack of consent, which issue should be left for the trier of fact. [31] In my view, the reviewing judge erred in finding that the preliminary inquiry judge made a jurisdictional error in discharging the appellant on the second count. The preliminary inquiry judge made an error in finding that there was no evidence of lack of consent. That error was made within his jurisdiction. That finding formed part of his conclusion that the evidence of the sexual activity and its circumstances, including that it was consensual, could not amount in law to gross indecency. Because that error was made within his jurisdiction, neither it nor the conclusion that the remaining evidence was insufficient to amount to grossly indecent conduct are reviewable errors. [32] The reviewing judge appears to be suggesting that for the purposes of the second count, the preliminary inquiry judge should have treated the issue of consent as one for the trier of fact. However, that option was not open to him once he found that there was no evidence of lack of consent. He was obliged to operate on the evidence before him and not on what further evidence might be led at a trial. His finding of no evidence bound him in his consideration of both counts before him. [33] The conclusion of what conduct can amount to gross indecency in law is a question of law. The preliminary inquiry judge's conclusion was not impugned by the reviewing court on that basis and Crown counsel concedes this point for the purpose of the appeal. CONCLUSION [34] I would allow the appeal, set aside the committals for trial and restore the orders of the preliminary inquiry judge discharging the appellant. RELEASED: October 17, 2003 ("LC") "K. Feldman J.A." "I agree Louise Charron J.A." "I agree J. Simmons J.A."