Date: 19970709 C.A.C. No. 133025
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v.C.D.J., 1997 NSCA 128
Hallett, Chipman and Roscoe, JJ.A.
BETWEEN:
C. D. J. ) David J. Bright, Q.C.
) for the Appellant
Appellant )
)
- and - )
) William D. Delaney
) for the Respondent
HER MAJESTY THE QUEEN )
)
Respondent ) Appeal Heard:
) June 19, 1997
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) Judgment Delivered:
) July 9, 1997
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THE COURT: Appeal dismissed per reasons for judgment of Hallett, J.A.; Chipman and Roscoe, JJ.A. concurring.
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
HALLETT, J.A.:
The appellant was charged with committing:
(i) an indecent assault between July 25, 1981 and January 3, 1983 at *;
(ii) a sexual assault between January 5, 1983 and April 1, 1983 at *; and
(iii) a sexual assault between April 1, 1983 and November 29, 1985 at *.
The complainant was the same person with respect to each count. The trial proceeded with a jury. The appellant was convicted of the first count and acquitted on the second and third counts.
The presiding judge sentenced the appellant to a period of 23 months incarceration to be followed by two years probation.
The complainant testified that the indecent assaults began within a week of her moving to Canada to live with her maternal grandparents at * in July of 1981. She was nine years of age at the time. The appellant is the brother of the complainant's mother. He too lived at the home; he was sixteen years of age in 1981. The complainant testified that by December of 1981 shortly after her tenth birthday the appellant's activity had escalated to his having sexual intercourse with her and that this happened frequently. She testified that sexual intercourse continued at the home in * through the time periods covered by the second count. The charge of sexual assault in the second count reflects the fact that the Criminal Code amendments creating the offence of sexual assault came into effect on January 3rd, 1983. The third count reflects the fact that the sexual assaults alleged by the complainant, including sexual intercourse, occurred at * and not * in the period between April 1st, 1983, and November 29th, 1995.
The appellant, who was thirty-five years of age when the trial was held, denied having any sexual activity with the complainant.
Justice Haliburton in passing sentence on the conviction for indecent assault made reference to the aforesaid facts. He stated that what the appellant did to the complainant was formerly statutory rape; it was not a simple case of sexual assault such as a fondling or sexual interference. He stated that the appellant had repeatedly raped the complainant in her own home.
The appellant has abandoned his appeal from conviction.
Counsel for the appellant submits that the trial judge erred in that he sentenced the appellant for rape rather than indecent assault, the offence for which he was convicted.
We are of the opinion that the trial judge did not err.
In R. v. Brown (1991), 66 C.C.C. (3d) 1, the Supreme Court of Canada held that a trial judge in sentencing a person convicted by a jury is bound by the express and implied factual implications of the jury's verdict.
The jury that convicted the appellant of indecent assault acquitted him of the two charges of sexual assault which allegedly occurred subsequent to the time frame covered by the indictment on the first count. The jury apparently had a reasonable doubt with respect to the alleged sexual assaults in the subsequent periods.
In his instructions to the jury the trial judge stated that each of the three counts involved the same type of action, but at different times. He went on to deal with the three counts as follows:
...the first count is that the Accused did between the 25th day of July, 1981, and the 3rd day of January, 1983, at or near *, in the County of *, indecently assault L. A. M. T., a female person contrary to Section 149(1). The provision in the Criminal Code of that time which provided for that offence simply said "everyone who indecently assaults a female person is guilty of an indictable offence". I can tell you, as a matter of law, that if you find that the Accused, C. J., fondled the Complainant, L. T., in the manner in which she described, then that would be an indecent assault. Similarly, the second and third counts allege that between the 5th of January '93 (sic) and April of '93, (sic) at or near *, C. J. did commit a sexual assault contrary to Section 246.11(a) of the Criminal Code. That section is very simple and to the point, just as the other one I read you, "everyone who commits a sexual assault is guilty of an indictable offence". If you find, on the evidence, that C. J. did those things which L. T. says he did to her, between the 5th of January '93, (sic) that would've been after she had been here for a year and a half and up until they moved out in April of '93 (sic) to go int... into, an apartment in town, if there were acts of intercourse, acts of fondling of her vaginal area, as she has testified, then I can tell you as a matter of law that that is a sexual assault.
With respect to the final count, that relates to incidents which occurred after April of 1983, which would be after they had moved out of the family home and went to first one apartment and then another apartment in *. If you find that similar incidents occurred after, then those similar incidents do constitute sexual assault.
........
Insofar as the assault aspect of it is concerned, the sexual assault aspect I've told you as a matter of law that, that the evidence would constitute such an assault, but again, it is for you to be satisfied that the manner of the touching, viewed by an objective observer, would be sexual in nature. So, I think you'll have no difficulty if you accept that intercourse took place or that there was fondling of the vaginal area which was the primary element of the evidence, then I think you'll have no difficulty in concluding that, that indeed there was a sexual or an indecent assault, as the case may be. The real question for you, it seems to me, will be whether that type of touching took place between these people.
(Emphasis added)
In this last passage, the trial judge instructed the jury that if they found that the appellant fondled or had sexual intercourse with the complainant, such acts would constitute a sexual assault or an indecent assault.
The jury began its deliberations at 11:12 a.m.
About 2:10 p.m. the jury advised the trial judge that they wished to have the evidence of the complainant played back on tape. This was done.
At 4:15 p.m., following the playing of the tape and after a short recess, the trial judge asked the jury to resume their deliberations.
At 6:07 p.m. the Court reconvened as the jury wished to hear the evidence of the appellant played back. Because of the lateness of the hour, the jury was sequestered for the night.
At 9:30 a.m. the next day the tape of the appellant's evidence was replayed. Following this, at 10:15 a.m., the jury retired to continue their deliberations.
At 11:15 a.m. the transcript discloses the following:
THE COURT: Gentlemen, I have a note from the jury asking, requesting a legal opinion. The note says, "Request a legal opinion between counts one and two as to the legal implications of ruling differently, on counts one and two.
After discussing the question with counsel, the trial judge stated to the jury:
I think in view of the question that you've asked, I should simply remind you of, of what I believe I said earlier with respect to why there were different counts. Count one related to the period up to the 3rd of January, 19, prior to the 3rd day of January, 1993, 1983, and alleged indecent assault. The Criminal Code was changed and that change became effective in January, on January 3rd, 1983 and, accordingly, an indecent assault or the type of behaviour that constituted an indecent assault prior to January of '93, or '83 rather, was the same time, kind of behaviour which would underpin a charge of sexual assault after that date. So, the essential difference between those two charges, in terms of law, is simply that the Criminal Code had changed and the name of the offence had changed.
Now there also obviously is the difference in the dates and the date when the offence occurred is an essential element that, about which you must be satisfied beyond a reasonable doubt. So if you are not satisfied beyond a reasonable that this type of behaviour took place between the times that are stated in each count, then you would find the Accused not guilty with respect to that count, even though you found that during the entire period, that you are satisfied, even though you are finding him guilty of something which occurred during that entire period. Does that, does that seem to be clear?
And I, perhaps, I mean, just the Criminal Code sections themselves are extremely simple. The earlier, the earlier offence that, that which, which came to an end in January of 1983, up until then the Criminal Code simply said everyone who indecently assaults a female person is guilty, after that date the wording simply changed to everyone who commits a sexual assault is guilty and as I indicated to you there, as I, I can tell you as a matter of law that if you accept the evidence of the Complainant, then there, then there is evidence on which you could not that you must, but there is evidence on which you could convict the Accused with respect to either sexual assault or indecent assault as in the appropriate time frame. But its for you, of course, to determine whether that evidence is there or not.
The jury retired at 11:19 a.m. and returned with the verdicts six minutes later.
In R. v. Brown the Supreme Court of Canada stated at p. 5:
Before us, the parties were agreed that there is no relevant difference between the English and Australian positions. In its factum filed here the Crown set out the English position, again quoting Thomas from an article, "Establishing a Factual Basis for Sentencing:, [1970] Crim. L.R. 80, at p. 82, where he says:
...the Court of Appeal has developed the principle that where the factual implication of the jury's verdict is clear, the sentence is bound to accept it and a sentence which is excessive in the light of the facts implied in the verdict will be reduced ... This principle can only apply however where the factual implication of the jury's verdict is clear; where ...the factual implication is ambiguous, the court has held that the sentence should not attempt to follow the logical processes of the jury, but may come to his own independent determination of the relevant facts.
This statement reflects the correct principle, namely, that the sentence is bound by the express and implied factual implications of the jury's verdict. There are other authorities to the same effect: R. v. Speid (1985), 20 C.C.C. (3d) 534 at p. 559, 46 C.R. (3d) 22 (Ont. C.A.); Boyle and Aiken, Sentencing Law and Practice (1985), at pp. 225, 227 and 229; Fox and Freiberg, Sentencing: State and Federal Law in Victoria (1985), at p. 48; Stockdale & Devlin, Sentencing (1987), at p. 62.
The trial judge heard the evidence and obviously accepted the complainant's evidence that sexual intercourse occurred in the period covered
by the first indictment. The appeal requires us to consider whether the acquittals by the jury on Counts two and three and the conviction for indecent assault on count 1 imply that the jury concluded that sexual intercourse did not occur in the period covered by the first count. One must ask the question: Is it clear that the jury did not accept the complainant's evidence of sexual intercourse occurring in the period covered by the first Indictment, having apparently not accepted her evidence with respect to the alleged sexual assaults committed at the subsequent times? This is a difficult question to answer. Although the jury convicted the appellant of indecent assault, it must be remembered that the indecent assault was the offence he was charged with in count 1. A finding of guilty could mean that the jury concluded that, in this time period, the appellant had sexual intercourse with the complainant. The fact that the appellant was only charged with indecent assault does not preclude a jury finding that sexual intercourse took place.
The decision in R. v. Wright (1971), 4 C.C.C. (2d) 220 (Ont. C.A.) has no application to these facts.
The jury verdicts may mean that the jury was not satisfied that sexual intercourse took place in any of the three time periods. Or it may mean that the jury found, with respect to count 1, that the appellant's only criminal conduct consisted of fondling.
It is impossible to assess what the jury decided, other than what is obvious from the verdicts; they acquitted the appellant of sexual assault on counts 2 and 3 and convicted him of an indecent assault on count 1.
Jury verdicts in criminal cases are usually just, but not always logical. The jury, for whatever reason, may have accepted the complainant's evidence that sexual intercourse had taken place but decided that since the only reason for the three counts was due to changes in the law and the location where the offences allegedly took place, that they should only convict him of one count.
On the facts of this case, this Court cannot imply that the jury rejected her evidence that sexual intercourse occurred in the period covered by the first count. The reason being that it is not clear as to what the jury accepted of the complainant's evidence on this count. The factual implications of the verdict are ambiguous; a matter of speculation. Therefore the sentencing judge was entitled to come to his own independent determination of the relevant facts.
I have reviewed the reasons given by the trial judge in imposing sentence. Considering all the circumstances I am satisfied it is a fit sentence. The appeal ought to be dismissed.
Hallett, J.A.
Concurred in:
Chipman, J.A.
Roscoe, J.A.
C.A.C. No.133025
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
C. DAVID J.
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
HER MAJESTY THE QUEEN )
) HALLETT,
) J.A.
Respondent )
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