Indexed as:

R. v. Burwell (Man. C.A.)

BetweenHer Majesty The Queen, Respondent, andDavid Allan Burwell (Accused) Appellant

[1993] M.J. No. 161

85 Man.R. (2d) 134

21 C.R. (4th) 20

19 W.C.B. (2d) 282

Suit No. AR 92-30-00677

Manitoba Court of Appeal

Huband, Twaddle and Helper JJ.A.

Heard: March 18, 1993. Judgment: March 30, 1993.

(13 pp.)

D.W. Fedorchuk, for the Appellant.B.G. Wilford, for the Crown.

1 HELPER J.A.:-- The appellant was convicted of sexual assault following a trial before a judge and juryand was sentenced to 33 months' imprisonment. He appeals against both his conviction and sentence.

2 The appellant's grounds for appeal attack the trial judge's charge to the jury on several issues. However,I need address only two of the issues raised to determine the outcome of the appeal.

3 1. The appellant submits the trial judge erred in refusing initially to direct the jury on the defence of"honest but mistaken belief in consent."

4 2. He submits that the trial judge failed to respond adequately to the question relating to "consent" posedby the jury during the course of their deliberations.

5 A brief review of the facts will prove helpful.

6 The complainant, who was 16 years old at the time, arrived in Winnipeg on the evening of June 26, 1991

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to attend air cadet camp. The appellant, who had not previously known the complainant, met her at the busdepot and conveyed her to the camp, as part of his duties as an air cadet officer. The female cadet sleepingquarters were located in four classrooms on the main floor of St. John's-Ravenscourt, the school where thecamp was being held.

7 The complainant's testimony was that she retired to her room at approximately 9:30 p.m. and fell asleep.She was awakened in the early hours of the morning of June 27th by the appellant who proceeded to kissher. She asked him to leave her room. He asked her to trust him and then proceeded to remove her bra andpanties. It was her evidence that over a four and a half hour period the appellant forced her to submit to twoacts of sexual intercourse. She admitted that aside from the actual act of intercourse the accused did not hurther nor did he threaten her with harm. She stated that she was frightened and shaking, that she neverconsented to the intercourse and that she demonstrated her lack of consent by asking him repeatedly toleave her room, by struggling against him and by kicking him.

8 The appellant testified to his belief in the complainant's consent to the acts of sexual intercourse. It washis defence that the Crown did not establish the complainant's lack of consent beyond a reasonable doubt. Inthe alternative, he alleged an honest but mistaken belief in the complainant's consent.

9 The trial judge held a pre-charge conference and advised counsel he would not put the defence ofhonest but mistaken belief to the jury. Counsel proceeded to address the jury on this understanding. The trialjudge, in his charge, identified "consent" as the only issue for the jury's determination.

10 Following their sequestration, the jury addressed two questions to the trial judge. The second questionwas worded as follows:

The jury would like more direction as to what constitutes consent. Does consent have tobe explicit?

11 The trial judge recalled the jury and began his response to the question as follows:

If by that question you were asking if she had to explicitly say that she was notconsenting, utter the very words that she was not consenting, the answer to yourquestion is no. The absence of consent can be inferred from the conduct of acomplainant.

12 He then proceeded, as part of his response to the question, to instruct the jury on the defence ofhonest but mistaken belief. He included in his instructions those circumstances where the defence of honestbut mistaken belief in consent would not be available to an accused; i.e., intoxication, willful blindness andrecklessness.

13 The jury returned with a guilty verdict shortly after having received these further instructions.

14 It is my view that the trial judge erred in refusing to direct the jury on the defence of honest butmistaken belief in his initial charge. His inclusion of instructions on that defence in his response to the jury'squestion following their sequestration did not correct the error. The defence was never adequately conveyedto the jury. Finally, the trial judge did not respond directly to the question the jury posed dealing with consent.Although I may not have found that the effect on the accused's rights of any one of these errors wouldwarrant a new trial, I have no hesitation in finding that their cumulative effect necessitates that result.

15 I turn initially to the defence of honest but mistaken belief in consent.

16 In relying upon the defence of honest belief, an accused is suggesting that even if the complainant didnot consent, he proceeded in the mistaken but honest belief that she had been willing. Though the offencewas committed, he is not responsible for he lacked the requisite intention.

17 If there is some evidence to convey a sense of reality to a defence of mistake as to consent, then thejury ought to be instructed to consider that plea. The evidence which would give this "air of reality" to the

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defence must appear from or be supported by sources other than the accused's evidence. Pappajohn v. R.(1980), 14 C.R. (3d) 243 (S.C.C.)

18 In this case, the appellant relied upon parts of the complainant's evidence alone to persuade the trialjudge that evidence did exist which conveyed a sense of reality to the defence. Those parts were:

- her admission that she responded positively to the appellant's intimate kiss;- her testimony that her underwear was not torn or damaged when the appellant removed

it;- the fact that the appellant remained in the complainant's room for four to four and

one-half hours without any real attempts by her to leave;- her testimony that she advised the appellant she could not become pregnant when he

expressed concerns on that subject between the two acts of intercourse;- she agreed the appellant never threatened her or used force against her;- when she did leave her room in the morning, the appellant was still present and made

no attempt to stop her;- she never screamed or called out for assistance although she knew another cadet was

housed in an adjacent classroom;- there was a time lapse between the removal of her underwear and the first act of

intercourse.

19 The trial judge relied on the case of R. v. Reddick, [1991] 1 S.C.R. 1086 to rule that there was not asufficient evidentiary basis for putting the defence to the jury.

20 In my view he erred.

21 Those parts of the complainant's testimony that were highlighted by the appellant provided the "air ofreality" of honest belief in consent which defence the appellant sought to have put to the jury. It would beimproper and confusing for a trial judge to instruct a jury on all possible defences available to an accusedabsent an evidentiary foundation for those defences. However, if there is evidence to establish the "air ofreality" of a defence, then it is incumbent upon a trial judge to give an accused the benefit of the doubt anddirect the jury on that defence after affording the accused the opportunity to present the theory of thedefence. Although the trial judge correctly reasoned that consent to a kiss was not an invitation to sexualintercourse, as I have already indicated there was other evidence from the complainant upon which theappellant relied to establish the reality of the defence.

22 I turn now to the trial judge's response to the question posed by the jury.

23 The question was simple. Does consent have to be explicit? It is obvious from the question that the jurywas unclear as to the kind of evidence upon which they could rely to determine consent -- the ultimate issuefor their determination. They had received the instruction that the onus was on the Crown to prove lack ofconsent beyond a reasonable doubt. It is from that perspective that the trial judge proceeded to answer thequestion. He said lack of consent need not be explicit, it could be inferred from conduct. Nowhere in hisresponse did he explain that consent need not be explicit, that it also could be inferred from conduct.

24 The Crown submits that the jury has the common sense to deduce from the trial judge's response that"consent" like "lack of consent" need not be explicit and may be inferred from conduct. While I haveconfidence in both the intelligence and common sense of the jury, it is my view that when the jury asks aspecific question, if that question is clear and lacks any ambiguity, then the trial judge is required to respondto that specific question simply and directly. Had the trial judge stated that both consent and lack of consentmay be inferred from conduct, or had he provided examples from the evidence of conduct from which theinference of consent or lack of consent could be drawn, then no error could be charged to him.

25 As part of his response to the question, the trial judge proceeded to charge the jury on the defence ofhonest but mistaken belief. He moved from the issue of consent (the circumstances and state of mind of thecomplainant) to the issue of the state of mind of the appellant. Having previously refused to charge the jury

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on this defence, which refusal resulted in the appellant's missing the opportunity to argue his defence fullybefore the jury, the trial judge was required to communicate that defence effectively and clearly for the jury'sbenefit to avoid a prejudice to the appellant.

26 There was only one question in the collective mind of the jury when the question was posed. The trialjudge's further instruction was directed to an entirely different and difficult theory of the defence. To assist thejury members in being able to turn their minds to this new concept, it was incumbent upon the trial judge tocommunicate the essence of the defence effectively. It was also necessary for him to explain the absence ofthis direction from his initial charge so as to nullify any prejudicial effect the delayed instruction might havehad on the appellant's defence.

27 He correctly stated the law as follows:

. . . an accused person does not commit the offence if he honestly but mistakenlybelieves in a set of facts which would make his conduct not unlawful. So if the accusedhonestly believed that the complainant was consenting to the act of sexual intercourse,even though she was not, he is entitled to be acquitted.

28 However, he at no time related any of the evidence to this explanation of the law. He talked about theexistence or lack thereof of reasonable grounds for the accused's belief in consent, but again did not relateany of the evidence to the law to which he had referred. He proceeded immediately following this referenceto the law to direct the jury on the circumstances when the defence would not be available to the appellant.He talked about willful blindness and drunkenness. As part of his direction relating to intoxication and how itaffects the defence of mistaken belief, he stated as follows:

If the Crown has not satisfied you beyond a reasonable doubt that the complainant didnot consent to the acts of the accused and that the accused did not honestly believe forreasons other than his drunkenness that the complainant consented to his acts, then theCrown has failed to prove the accused assaulted the complainant and you must find theaccused not guilty.

29 Again, the above-quoted statement is technically correct. There is no error to be found in the trialjudge's recitation of the law. However, a layman listening to the explanation of the law that was providedcould not help but be confused. I repeat that I do not intend, by stating the foregoing, to denigrate in any waythe ability of a jury to identify the issues set out for them in difficult legal terms. However, it is the function ofthe trial judge to simplify and clarify the issues for the jury and to communicate effectively the theories of theCrown and defence so as to avoid confusion in the minds of the jurors and to assist them with theirresponsibilities. The jurors are required to function without the benefit of the written word. They receive theirinstructions on the law from the trial judge through his oral charge. It is not enough for the trial judge topresent the law and all its exceptions in technically correct language and to leave the jurors with the task ofdeciphering the legal language used. The trial judge is responsible to ensure the law and the issues havebeen communicated to the jury in a manner that is comprehensible.

30 In this case, following the initial charge, the jury was not assisted with any reference to the evidenceupon which they could rely in support of the defence of honest but mistaken belief. The task of the jury wasfurther complicated by the belated charge without the benefit of counsel's arguments. The fact that the latercharge was legally correct cannot save it.

31 The trial judge's failure to charge the jury initially on the defence of honest but mistaken belief, coupledwith his non-responsive answer to the jury's question and the inadequate explanation of the defence given aspart of that answer, constitutes a misdirection to the jury. The resulting prejudice to the appellant warrants anew trial.

32 In the result, I would allow the appeal, set aside the conviction and order a new trial.

HELPER J.A.

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HUBAND J.A.:-- I agree.

TWADDLE J.A.:-- I agree.

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