Indexed as:

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

Between
Her Majesty The Queen, Respondent, and
David 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 jury
and 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" posed
by 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 bus
depot and conveyed her to the camp, as part of his duties as an air cadet officer. The female cadet sleeping
quarters were located in four classrooms on the main floor of St. John's-Ravenscourt, the school where the
camp 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 kiss
her. She asked him to leave her room. He asked her to trust him and then proceeded to remove her bra and
panties. It was her evidence that over a four and a half hour period the appellant forced her to submit to two
acts of sexual intercourse. She admitted that aside from the actual act of intercourse the accused did not hurt
her nor did he threaten her with harm. She stated that she was frightened and shaking, that she never
consented to the intercourse and that she demonstrated her lack of consent by asking him repeatedly to
leave 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 was
his defence that the Crown did not establish the complainant's lack of consent beyond a reasonable doubt. In
the 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 of
honest but mistaken belief to the jury. Counsel proceeded to address the jury on this understanding. The trial
judge, 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 question
was worded as follows:
The jury would like more direction as to what constitutes consent. Does consent have to
be 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 not
consenting, utter the very words that she was not consenting, the answer to your
question is no. The absence of consent can be inferred from the conduct of a
complainant.
12 He then proceeded, as part of his response to the question, to instruct the jury on the defence of
honest but mistaken belief. He included in his instructions those circumstances where the defence of honest
but mistaken belief in consent would not be available to an accused; i.e., intoxication, willful blindness and
recklessness.
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 but
mistaken belief in his initial charge. His inclusion of instructions on that defence in his response to the jury's
question following their sequestration did not correct the error. The defence was never adequately conveyed
to 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 would
warrant 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 did
not consent, he proceeded in the mistaken but honest belief that she had been willing. Though the offence
was 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 the
jury 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 trial
judge 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 a
sufficient 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 of
reality" of honest belief in consent which defence the appellant sought to have put to the jury. It would be
improper and confusing for a trial judge to instruct a jury on all possible defences available to an accused
absent an evidentiary foundation for those defences. However, if there is evidence to establish the "air of
reality" of a defence, then it is incumbent upon a trial judge to give an accused the benefit of the doubt and
direct the jury on that defence after affording the accused the opportunity to present the theory of the
defence. Although the trial judge correctly reasoned that consent to a kiss was not an invitation to sexual
intercourse, as I have already indicated there was other evidence from the complainant upon which the
appellant 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 jury
was unclear as to the kind of evidence upon which they could rely to determine consent -- the ultimate issue
for their determination. They had received the instruction that the onus was on the Crown to prove lack of
consent beyond a reasonable doubt. It is from that perspective that the trial judge proceeded to answer the
question. He said lack of consent need not be explicit, it could be inferred from conduct. Nowhere in his
response 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 have
confidence in both the intelligence and common sense of the jury, it is my view that when the jury asks a
specific question, if that question is clear and lacks any ambiguity, then the trial judge is required to respond
to that specific question simply and directly. Had the trial judge stated that both consent and lack of consent
may be inferred from conduct, or had he provided examples from the evidence of conduct from which the
inference 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 of
honest but mistaken belief. He moved from the issue of consent (the circumstances and state of mind of the
complainant) 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 fully
before the jury, the trial judge was required to communicate that defence effectively and clearly for the jury's
benefit 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 trial
judge's further instruction was directed to an entirely different and difficult theory of the defence. To assist the
jury members in being able to turn their minds to this new concept, it was incumbent upon the trial judge to
communicate the essence of the defence effectively. It was also necessary for him to explain the absence of
this direction from his initial charge so as to nullify any prejudicial effect the delayed instruction might have
had 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 mistakenly
believes in a set of facts which would make his conduct not unlawful. So if the accused
honestly 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 the
existence or lack thereof of reasonable grounds for the accused's belief in consent, but again did not relate
any of the evidence to the law to which he had referred. He proceeded immediately following this reference
to 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 it
affects the defence of mistaken belief, he stated as follows:
If the Crown has not satisfied you beyond a reasonable doubt that the complainant did
not consent to the acts of the accused and that the accused did not honestly believe for
reasons other than his drunkenness that the complainant consented to his acts, then the
Crown has failed to prove the accused assaulted the complainant and you must find the
accused not guilty.
29 Again, the above-quoted statement is technically correct. There is no error to be found in the trial
judge's recitation of the law. However, a layman listening to the explanation of the law that was provided
could not help but be confused. I repeat that I do not intend, by stating the foregoing, to denigrate in any way
the ability of a jury to identify the issues set out for them in difficult legal terms. However, it is the function of
the trial judge to simplify and clarify the issues for the jury and to communicate effectively the theories of the
Crown and defence so as to avoid confusion in the minds of the jurors and to assist them with their
responsibilities. The jurors are required to function without the benefit of the written word. They receive their
instructions on the law from the trial judge through his oral charge. It is not enough for the trial judge to
present the law and all its exceptions in technically correct language and to leave the jurors with the task of
deciphering the legal language used. The trial judge is responsible to ensure the law and the issues have
been 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 evidence
upon which they could rely in support of the defence of honest but mistaken belief. The task of the jury was
further complicated by the belated charge without the benefit of counsel's arguments. The fact that the later
charge 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, coupled
with his non-responsive answer to the jury's question and the inadequate explanation of the defence given as
part of that answer, constitutes a misdirection to the jury. The resulting prejudice to the appellant warrants a
new 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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