The issue on this appeal was whether an acquittal on a charge of sexual assault and a conviction on a charge of sexual exploitation on the same factual allegations are necessarily inconsistent. The appellant was charged with sexual assault of the developmentally delayed daughter of his common law spouse when she was 13 and 14 years old. He was also charged with sexual exploitation (being in a position of trust or authority towards the complainant and touching her for a sexual purpose) pursuant to s. 153(1)(a) of the Criminal Code. Her evidence suggested that the assaults included intercourse and oral sex, and there was no suggestion that different types of sexual activities occurred at different times throughout the relevant time period. She was clear that she did not consent. Although the appellant denied that these incidents occurred, it was not disputed that if they had occurred, the last incident would have taken place after the complainant’s fourteenth birthday. This was important for several reasons. First, as “young person” was defined in the offence of sexual exploitation as an individual “fourteen years of age or more but under the age of eighteen”, this offence, as a matter of law, could not have been committed against the complainant before she turned 14. Second, at the time when the offence was alleged to have been committed, consent was not, as a matter of law, a defence to a charge of sexual assault where the victim was “under the age of fourteen years”. Consent was (and remains) not a defence to a charge of sexual exploitation.
The jury acquitted the appellant on the sexual assault charge (this was not appealed by the Crown), but initially could not reach a verdict on the sexual exploitation charge. However, after further deliberations, they found him guilty. The appellant appealed on the basis that the trial judge made several errors in his charge and that the verdicts were necessarily inconsistent because the evidence was such that it did not allow for segregation into discrete events that could support a conviction for one charge while allowing an acquittal on the other. He submitted that the trial judge should have withdrawn the count of sexual exploitation from the jury and directed that an acquittal be entered. The Crown conceded that the trial judge made several errors in his charge. He erroneously referred to the complainant as a “young person” throughout the entire time period covered by the indictment, even though she only fell within this definition after her fourteenth birthday. He also failed to explain that although consent could not be a defence to the incidents which occurred before the complainant’s fourteenth birthday, it could have been so with respect to those that occurred after this. He told the jury several times that consent was not an issue in the trial.
The Crown argued that the verdicts were not necessarily inconsistent because it was possible for the jury to have acquitted the appellant of sexual assault and convicted him of sexual exploitation if 1) touching for a sexual purpose occurred after the complainant’s fourteenth birthday; and 2) the touching was nevertheless consensual, thereby negativing any sexual assault but not negativing touching for a sexual purpose (for which consent was not a defence). However, given that the trial judge had instructed the jury that consent was not an issue in the trial, and had not drawn their attention to the significance of the complainant’s birthday, the Court felt it was not reasonable to assume that the jury reasoned in the manner suggested by the Crown. It thus concluded that, in the unusual circumstances of the case, the verdicts were inconsistent, and therefore unreasonable within s. 686(1)(a)(i) of the Code.
Despite this conclusion, however, the Court declined to enter an acquittal on the sexual exploitation charge. It was of the view that it was possible that a properly instructed jury could have convicted the appellant on the sexual exploitation charge. It thus ordered a new trial.
February 21, 2011
Link to Decision
Kathryn McGoldrick
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