COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Gillespie,

2019 BCCA 8

Date: 20190108

Docket: CA43259

Between:

Regina

Respondent

And

Kenneth Wayne
Gillespie

Appellant

Restriction
on publication
:  A publication ban has been mandatorily imposed under
s. 486.4(2) of the
Criminal Code
restricting the publication,
broadcasting or transmission in any way of evidence that could identify the
complainant or a witness. This publication ban applies indefinitely unless
otherwise ordered.

Pursuant
to s. 16(4) of the
Sex Offender Information Registration Act (SOIRA)
,
no person shall disclose any information that is collected pursuant to an order
under
SOIRA
or the fact that information relating to a person is
collected under
SOIRA
.

Before:

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Willcock

The Honourable Madam Justice Fenlon

On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 31, 2012 (conviction) (
R. v. Gillespie
, Nanaimo Docket 73705-2).

Counsel for the Appellant:

T.J. Russell

Counsel for the Respondent:

J. Dickie

Place and Date of Hearing:

Victoria, British
  Columbia

October 18, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2019

Written Reasons by:

The Honourable Madam Justice Fenlon

Concurred in by:

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Willcock

Summary:

Appeal from conviction by
jury of sexual assault. Appellant argues the trial judge made a number of
errors in his charge to the jury that collectively justify quashing the
conviction and ordering a new trial. Held: appeal dismissed. Although the trial
judge erred by referring to sections of the Criminal Code not in issue, when
read as a whole his charge on consent would not have misled the jury. Further,
the Crowns description of the complainants condition was a fair
characterization of the evidence and was adopted by defence counsel in closing
submissions. Regarding the complainants prior statement, it was open to the
Crown to elicit the change in her evidence on direct examination, and the trial
judges charge sufficiently instructed the jury on the use of that evidence.
The post-offence conduct had probative value and did not require an instruction
as the appellant contends. Lastly, although some inadmissible evidence was put
before the jury, the trial judge did not err in his approach to dealing with
such evidence. In light of the overwhelming evidence to support the jurys
verdict in this case, it is appropriate to rely on the curative proviso in
s. 686(1)(b)(iii) of the Criminal Code.

Reasons for Judgment of the Honourable
Madam Justice Fenlon:

Introduction

[1]

Kenneth Wayne Gillespie was convicted by a jury of sexual assault and
common assault. He appeals only the sexual assault conviction, contending the judge
made a number of errors in his charge to the jury that collectively justify
quashing the verdict and ordering a new trial.

Background

[2]

The charges arose out of events that took place in Nanaimo, British
Columbia in August 2011. Mr. Gillespie, then in his mid-60s, and the
complainant, then in her mid-20s, met briefly at a bar in downtown Nanaimo when
the complainant asked him for a cigarette. At about 11:00 pm, the complainant
left the bar on her own and was seen walking unsteadily. She had consumed
alcohol and marihuana over the course of the evening. As she waited at a bus
stop, Mr. Gillespie approached and offered her a ride home in his minivan.
She got into the passenger seat, and told Mr. Gillespie where she lived.
After travelling some distance, Mr. Gillespie pulled over. At this point
the versions of events diverge.

[3]

The complainant testified that Mr. Gillespie suddenly pulled down
his pants, climbed over to her side of the van and on top of her, and had
sexual intercourse with her which lasted about two minutes. She said she did
not resist because she was drunk, in shock and scared; she felt disgusted as
the sexual act was happening and after it was over was in shock, felt disgusted
and afraid. According to the complainant, after the sexual contact Mr. Gillespie
drove a bit further, then pulled over again. She got out of the van and ran to
a nearby trailer park for help, with Mr. Gillespie pursuing her on foot.

[4]

Witnesses at the campground testified that Mr. Gillespie was trying
to restrain the complainant, yanking on her arm and trying to pull her back to
the van. They described the complainant breaking away and running down an
embankment to a four-lane highway. They said Mr. Gillespie drove past them
in his van, stopped, and reversed rapidly, veering onto the shoulder of the
highway, and striking one of the men trying to help the complainant. When that
same individual reached into the van to try to stop Mr. Gillespie, he
gunned the engine and sped away, almost hitting the complainant and another
witness.

[5]

Mr. Gillespies version of events was generally consistent with the
complainants, except as to the consensual nature of the sexual act. He
testified that the complainant did not seem particularly intoxicated, and
described her as sitting in a revealing manner during the ride which led him to
try touching her bare thigh. When she did not object, he moved his hand higher
on her thigh and asked her if she liked it. He said she replied, to the bush,
to the bush, to the bush, which he assumed was an invitation to sexual
intercourse. He pulled over and asked the complainant if she wanted him, to
which he says she replied in the affirmative. He said that the complainant put
her seat back in the horizontal position, at which point he climbed on top of
her and had brief, unprotected, sexual intercourse with her. Mr. Gillespie
said that when the complainant ran from the car, he chased her because he was
confused by her behaviour and wanted to give her a ride home. He also said he
was scared that someone might think he had raped her. He grabbed her arm when
he caught up with her because he wanted to find out what was wrong. When she
continued to not make any sense, he says he decided to leave and return to his
van. When he was driving past the campground, he saw the complainant on the
highway and decided again to offer her a ride home, but felt threatened by one
of the men helping her and left. He testified, and was the only witness to do
so, that he took a particular route home to avoid the police.

[6]

The complainant was taken to hospital but was not examined until she
returned the next day. A nurse observed minor injuries on the complainants
body and collected various forensic samples. Those samples were found to
contain semen matching Mr. Gillespies DNA.

At trial

[7]

At trial the only issues related to consent: whether the complainant
consented, whether she had the capacity to consent, and whether in any event Mr. Gillespie
had a mistaken but reasonable belief that the complainant had consented.

[8]

The Crowns theory was that Mr. Gillespie seized the chance to
engage in sexual intercourse with a drunken young woman, and that the
complainant had not consented to any sexual activity with Mr. Gillespie,
or alternatively was unable to consent by virtue of intoxication.

[9]

The defence theory was that the complainants behaviour was consistent
with someone who simply regretted having unprotected sexual intercourse with an
older man. The defence stressed there was no evidence the complainant resisted Mr. Gillespies
sexual advances, and disputed the level of her intoxication, noting that she
was apparently able to run from the van and put up a fight.

[10]

The trial proceeded expeditiously. The Crown called the complainant and
a number of witnesses who had observed the complainant at the bar and at the
campground. Mr. Gillespie was the sole witness called for the defence. The
judge charged the jury on the fourth day of trial. They convicted on both
counts.

Issues

[11]

The appellant identified nine issues on appeal which can be grouped into
five grounds of appeal. He contends the judge erred in:

1.       his instructions on consent;

2.       failing to correct misstatements made by the
Crown in opening and closing submissions;

3.       failing to instruct on the use of the
complainants prior statement regarding a knife;

4.       failing to instruct on the limited use the
jury could make of the accuseds conduct at the trailer park; and

5.       failing to instruct on
the proper use of the complainants hearsay evidence and other lay opinion
evidence.

I will address each of these grounds of appeal in turn.

1.       Did the judge err in his instructions
on consent?

[12]

Mr. Gillespie contends the judge made four errors in his charge to
the jury relating to consent. First, he says the judge gave a confusing
instruction when describing the decision tree on the consent issues:

You must decide whether [the complainant] actually consented
to sexual intercourse. If she
did not
consent,
you must decide
whether the consent was obtained where she was incapable of consenting because
of her state of intoxication
. It is not for Mr. Gillespie to prove
this. The Crown must prove beyond a reasonable doubt that [the complainant] did
not consent to sexual intercourse, or if she did, that this consent was
obtained where she was incapable of so providing it. If you are left with a
reasonable doubt on either point, you must give the benefit of the doubt to Mr. Gillespie
and acquit him.

[Emphasis added.]

[13]

The Crown agrees the judge misspoke, and that the second sentence above
should have been If she
did
consent  rather than If she
did not
consent . However, the instructions immediately following make it clear that
the judge was addressing what the jury must do if they found the complainant
had
consented. Further, the judge correctly described the decision tree on the consent
issues in two other parts of the charge. In my view, the jury would not have
misunderstood the instructions because of the initial misstatement.

[14]

The second issue on consent relates to the judges use of prejudicial
language in describing the Crowns position. The passage of the charge
complained of is set out below:

As you can see, where a person consents to sexual intercourse
where the person is incapable of consenting to it, the law considers that
consent to be invalid. In law it is not consent. Thus, in such a case, the
sexual intercourse occurred without consent. It is the Crowns position that [the
complainant] was incapable of consenting because of her state of intoxication,
because of her use of marijuana and alcohol prior to the sexual intercourse
occurring.
And that it was Mr. Gillespie who preyed upon her condition
.

[Emphasis added.]

[15]

The appellant submits that, although it was not wrong for the judge to
refer to the Crowns position, he should not have used the expression preyed
upon, because that language was not used by the Crown and was prejudicial. The
appellant also argues that the judges instruction linked the Crowns position
on incapacity with its theory that the appellant was well aware that the
complainant was seriously intoxicated. He submits that the placement of the
phrase is a problem because it suggested to the jury that if the complainant
was so intoxicated as to be incapable of consenting, that was enough to
establish the necessary
mens rea
to prove the offence  without the need
to consider whether Mr. Gillespie nonetheless had an honest but mistaken
belief that she had consented.

[16]

I would not accede to this submission. When reviewing jury instructions
an appellate court must examine the error alleged in the context of the entire
charge and of the trial as a whole:
R. v. Jaw
, 2009 SCC 42 at para. 32.
In the present case, the charge read as a whole fairly and thoroughly canvassed
both the defence and Crown positions on the issue of consent and intoxication.
After using the impugned phrase the judge discussed the applicable legal
principles and fairly pointed out evidence that supported the defence theory
that the complainant was not overly intoxicated. The judge also instructed the
jury that the Crown had to prove beyond a reasonable doubt Mr. Gillespie knew
the complainant was either not consenting or that she did not validly consent
due to intoxication. In my view, the judges earlier reference to the Crowns
theory would not have caused an improper leap in logic in relation to the
necessary
mens rea
.

[17]

Finally on this issue, although the Crown had not used the word preyed,
that description of Mr. Gillespies conduct accurately captured the Crowns
position at trial.

[18]

The third error the appellant contends the judge made in relation to
consent is a lack of balance in the charge. Mr. Gillespie says that
occurred because the judge told the jury that a lack of resistance by the
complainant did not equate to consent, but did not tell the jury that a failure
to resist was also consistent with either actual consent or Mr. Gillespies
honest but mistaken belief in consent.

[19]

The defence cross-examined the complainant extensively on her failure to
resist. She admitted that she did not push Mr. Gillespie away and that she
did not say a word during the sexual act. Mr. Gillespie, in his closing
submissions, relied on the complainants lack of resistance to suggest to the
jury that she had consented. After describing the complainant putting up a
heck of a fight after she left the van, defence counsel submitted:

This is not somebody whos blackout drunk or stoned beyond
belief. This is not somebodys who is shocked and dumbfounded. This is someone
who is absolutely capable of resisting.

So what inference can you draw from that, ladies and
gentleman?
She didnt resist. She was going along with it. She consented to
the sexual activity
.

[Emphasis added.]

[20]

In my view, the judge properly instructed the jury that consent was not
the absence of resistance, but rather an active state of mind. That instruction
was necessary to ensure that the jury did not err in law by inferring consent
only from a lack of resistance. An additional instruction suggesting that lack
of resistance could support consent would have confused the jury. Further, in
the circumstances of this brief trial, it was not in my view necessary for the
judge to instruct the jury that the complainants lack of resistance supported Mr. Gillespies
reasonable belief in consent. It would have been clear to the jury that Mr. Gillespie
was relying on the complainants lack of resistance to support his
understanding at the time that she had consented to the sexual act.

[21]

The fourth and final error contended for by the appellant on consent is
more significant. He says the judge charged on irrelevant sections of the
Criminal
Code
, R.S.C. 1985, c. C-46 which could have confused the jury, relying on
R.
v. Hebert
, [1996] 2 S.C.R. 272. In the present case, the judge read to the
jury the entirety of s. 265(3) when only s. 265(3)(a) was relevant:

(3)
For the purposes of this section, no consent is obtained where
the complainant submits or does not resist by reason of

(a)

the application of force to the complainant or to a person other than
the complainant
;

(b)
threats
or fear of the application of force to the complainant or to a person other
than the complainant;

(c)
fraud;
or

(d)
the
exercise of authority.

[Emphasis added.]

[22]

The judge also recited the entirety of section 273.1 when only section
273.1(2)(b) was relevant:

273.1
(1) Subject
to subsection (2) and subsection 265(3),
consent
means, for the
purposes of sections 271, 272 and 273, the voluntary agreement of the
complainant to engage in the sexual activity in question.

(2) No consent is
obtained
, for the
purposes of sections 271, 272 and 273, where

(a)
the agreement is expressed by the words or conduct of a person other
than the complainant;

(b) the complainant is incapable
of consenting to the activity
;

(c)
the accused induces the complainant to engage in the activity by
abusing a position of trust, power or authority;

(d)
the complainant expresses, by words or conduct, a lack of agreement to
engage in the activity; or

(e)
the complainant, having consented to engage in sexual activity,
expresses, by words or conduct, a lack of agreement to continue to engage in
the activity.

(3)
Nothing in
subsection (2) shall be construed as limiting the circumstances in which no
consent is obtained.

[Emphasis added.]

[23]

I agree with the appellant that the judge erred by reading in sections
of the
Criminal Code
that were not relevant to the issues before the
jury. However, the judge emphasized that the Crown was only relying on s. 273.1(2)(b),
and did not instruct on the irrelevant subsections of either s. 265(3) or
s. 273.1.(2). The charge is thus distinguishable from
Hebert
in
which full instructions were given for all the irrelevant sections. Further, in
the present case the judge provided copies of the relevant provisions of the
Code
to the jury to take with them into the jury room during their deliberations.
There is no suggestion that the unnecessary sections were included on that sheet
or in the decision tree left with the jury.

[24]

Mr. Gillespie argues further that even s. 265(3)(a) should not
have been left with the jury. But in my view, the complainants evidence that
she was afraid, and the defence position that her failure to resist meant she
was going along with it [and] consented to the sexual activity put the issue
of why the complainant did not resist at issue. It was not an error for the
judge to leave s. 265(3)(a) with the jury in these circumstances.

[25]

In summary on this fourth issue, I am of the view that, in the context
of the charge as a whole, the single reference to the irrelevant subsections would
not have distracted the jury from its task of determining whether the
complainant had consented, whether she was too intoxicated to have the capacity
to consent, and whether the accused could reasonably have had a mistaken belief
as to her consent. I turn now to the next ground of appeal.

2.       Did
the judge err in failing to correct misstatements in the Crowns opening and
closing submissions?

[26]

In its opening submissions, Crown counsel told the jury that the
complainant would testify that she was impaired, feeling like she was coming in
and out of blackouts when [her assailant] crawled into the passenger side of
the vehicle ; and that she froze, felt scared and did not say or do anything
because she was afraid. In closing submissions, Crown counsel told the jury
that the complainant testifie[d] to being in and out of it, drifting in and
out of being blacked out at the time of the alleged sexual assault.

[27]

Mr. Gillespie says that neither the complainant nor any other
witness used the language of blackouts or drifting in and out of
consciousness. He contends the judge erred by failing to tell the jury that
the statements made by the Crown were not evidence and that they must free
their minds of them:
R. v. Clause
, 2016 ONCA 859. Further, he says the
judge exacerbated the error by repeating the same language in his description
of the evidence when charging the jury.

[28]

The Crown acknowledges the complainant did not use the term blackout
in her testimony, but says it accurately described the evidence. The
complainant testified that she was quite intoxicated and fairly inebriated.
She described the impact of her intoxication on her level of alertness during
the ride in the van this way:

A          I remember being in -- in the front seat of
the vehicle and I dont recall if we had smoked any drugs or -- like marihuana
or anything like that. And then I just remember being in the front seat of the
vehicle and just kind of -- just being intoxicated and on -- like high on
marihuana. And I mean I was in a relatively good mood, like I said, like --
because I dont -- I didnt think of anything that was going to happen or go
wrong. And like I just dont -- like I just didn't at that --
I just feel
like I just didnt understand like what was going on at that point because like
I was -- like really I was -- like I was intoxicated and --

Q         What happened, ?

A          I recall looking over to the seat next to me
and he was taking off his pants, and I just
remember thinking of -- in my
mind, like whats happening, like what's going on. I dont get it
. And he
had crawled over to the seat in front of me and like
I was in such a state
of shock that I just didnt -- I couldnt react to it
. And --

Q         What happened?

A          -- and thats when he had put his penis
inside of my vagina because I -- I was just in --
I was really drunk

A
Everything prior to the point of when he
had put his penis inside of my vagina, I -- I wasnt too aware of anything
.
But ever after  everything after that happened,
I felt like I was just  I
came out of this complete state of unknowing really
and I was just
completely aware of everything that was happening after that. And I just knew I
just needed to get away and tried to -- try to anyways but I couldnt.

[Emphasis added.]

[29]

I would not accede to this ground of appeal. Although it would have been
preferable for the Crown in its opening submission to use the same terminology
as the complainant, the Crowns characterization of the evidence was fair. The
judge did not use the term during his charge. Rather, he said  the Crown
points to [the complainants] testimony of her level of consciousness in the
car, that she was coming in and going out in terms of her consciousness, or
level of awareness. The trial judge also included the defence theory and its
supporting evidence that the complainant was not as intoxicated as she claimed.
He made it clear to the jury that they were the triers of fact.

[30]

In my view, the absence of prejudice to the accused arising from the
Crowns terminology is underscored by defence counsel at trial adopting the
same words in his closing submissions to the jury. He told the jury that the
complainant had testified that she was blackout drunk, coming out of blackout,
or near blackout, in order to contrast that with her vigorous resistance and
activity at the trailer park once she left the van.

3.       Did
the judge fail to instruct on the complainants prior statement about a knife?

[31]

In an initial statement to police made on the night of the events, the
complainant said her assailant had a knife in his hand during the assault. She
retracted that allegation a few days later in her second interview with police.
Crown counsel elicited this evidence from the complainant in direct
examination. Mr. Gillespie submits there were two problems with this
procedure. First, he says that it was not proper for Crown to lead this evidence
because it amounted to oath helping  trying to establish that the witness was
a truthful person, evident from the value laden description of the complainant correcting
her evidence rather than changing it. Second, he says the Crown was not
entitled to lead evidence of the complainants change of story in
examination-in-chief.

[32]

The appellant submits that the evidence amounted to oath helping because
it was evidence of a prior
consistent
statement  the complainant
corrected her evidence on an earlier occasion, saying that a knife had not been
used in the assault, and then repeated that testimony at trial. The appellant
submits the judge should have given the jury a mid-trial instruction or at
least canvassed that option with counsel, but also says the judge should have
instructed the jury on the use of the prior
inconsistent
statement,
i.e., that in assessing the complainants evidence they were to consider what,
if any, explanation for the inconsistency she had offered.

[33]

The appellants submissions on this ground of appeal were not entirely
consistent, characterizing the impugned evidence as both a prior consistent
statement and a prior inconsistent statement. In my view, the complainants
evidence is properly characterized as an admission that she had changed her
story to police, i.e., that she had made a prior
inconsistent
statement.

[34]

The thrust of the appellants complaint is really the second one
identified: the decision of the Crown to introduce a prior inconsistent
statement in a strategic effort to rehabilitate its witness by bringing the
statement and subsequent retraction out in chief rather than leaving it for the
defence to introduce it on cross-examination. The appellant acknowledges that
the evidence was admissible but submits the Crown should not have raised it
until the defendant had cross-examined on it, i.e., in redirect and then only
if the subsequent correction and reason for the change in story had not come out
during cross. The appellant argues that by raising the retraction in direct
examination, the Crown made a purely tactical decision designed to steal the
wind from the sails of the defence in cross-examination.

[35]

In my view, there was nothing improper in the Crown anticipating
cross-examination and raising the prior inconsistent statement as part of its
own case. Taking the wind out of the other sides sails is a permissible
approach for both Crown and defence. For example, defence counsel routinely
raises the accuseds criminal record in-chief rather than leaving it to the
Crown to raise in cross-examination.

[36]

Mr. Gillespie relies on
R. v. Pinkus
(1999), 140 C.C.C. (3d)
309 (Ont. S.C.J.). In that case, the Crown sought to question a witness in direct
about a prior inconsistent statement she had made and the reason for that
change. The witness had initially told police her former partner was not
involved in the murder in issue. She subsequently gave a statement identifying
him as the murderer, explaining she had initially been afraid to implicate him.
The court in
Pinkus
ruled that this evidence could not be introduced by
Crown because its sole purpose was to bolster the witnesss credibility.

[37]

In my view,
Pinkus
is contrary to the weight of authority. It was
distinguished by a judge of the same court in
R. v. Durant
, 2012 ONSC
6792. In that case the Crown sought leave to adduce a witnesss previous
inconsistent statement on direct examination. The defence objected on the basis
that if offended the rule against oath-helping. Ramsay J. considered the case
law on oath-helping, noting the distinction between cases in which a party
seeks to adduce evidence about the characteristics of a witness that tend to
support their truthfulness, and cases where a party seeks to elicit a previous
inconsistent statement of a witness on direct examination. He held that the
latter type of cases did not constitute improper oath-helping. He granted the
Crowns application, reasoning:

[8]        .
Asking a witness about recanting a previous
inconsistent statement
(or, for that matter, the fact of being charged as
an accomplice)
does not prove the truthfulness of the witness. The question
is not asked for that purpose. It detracts from the truthfulness of the
witness. Bringing it out in chief is simply designed to dispel any impression
that the Crown was hoping that the jury would not find out. It is perfectly
legitimate advocacy. It has nothing to do with the rule against oath-helping
.
Neither does s.12 of the Canada Evidence Act. As for the explanation, some of
it is tied up with the evidence of the witnesss relationship with the accused
and will inevitably come out in chief. At certain relevant times the witness
was married to the accused. It is also conceded that certain letters sent by
the accused to the witness are admissible. Beyond that, the explanation for the
previous statements should wait for cross-examination and re-examination, in
the usual course.

[Emphasis added.]

[38]

The Ontario Court of Appeal adopted the same approach in
R. v.
Pollock
, (2004), 187 C.C.C. (3d) 213 (O.N.C.A.), leave refd [2004]
S.C.C.A. No. 405. In that case the accuseds former girlfriend, who had
been living with him at the time of the killing, initially provided an alibi
saying that the accused had been watching a movie with her at home during the
time of the shooting. She maintained that story over several years, only
changing it when she was seeking parole. Rosenberg J.A., writing for the court,
noted that it was clear that counsel for the accused would attack the witnesss
credibility over her change of heart. At para. 136, he said:

Accordingly, it was
open to Crown counsel to anticipate that line of attack by adducing evidence
from [the witness] that she made the prior inconsistent statements out of fear
of [the accused]. See
R. v. Speid

(1985),
20 C.C.C. (3d) 534 (Ont. C.A.)
at 546-54
. It was also open to Crown counsel to
lead evidence as to the basis for this fear. Thus, some of the evidence that
Crown counsel and counsel for [the complainant] led from [the witness] of [the
accuseds] violent disposition was properly admissible.

[39]

In my view, it is arguably to the advantage of an accused for the Crown
to address a witnesss explanation for an inconsistent statement in chief,
rather than raising it for the first time in re-examination. The latter course results
in the trier of facts hearing the reason for the change of heart at the end of
the witnesss testimony which may take the sting out of the inconsistency,
rather than having the final note in the cross-examination emphasize the witnesss
change of story  as unfolded in the present case. During cross-examination, counsel
for Mr. Gillespie obtained the very concessions he sought:

·

The
complainant agreed that she had lied to the police during her first statement;
and

·

She agreed that she was sober enough to remember what she had
said to police in spite of her memory problems about other matters.

Mr. Gillespie also incorporated the inconsistency
into his closing submissions, arguing that the complainant had uttered a bald-faced
lie, and that her lie to the police was a reason to disbelieve all of her
evidence.

[40]

The lack of prejudice to Mr. Gillespie in the Crown proceeding as
it did is borne out by the absence of an objection by defence counsel at trial.
To the contrary, counsel specifically stated that he had no difficulty with
the Crown leading that evidence.

[41]

As to the description of the complainant correcting herself, both
counsel used that language. In my view, the phrase was clearly appropriate in
this case given that the use of a knife during the assault was not alleged by
the Crown, and it was to the accuseds advantage to make it clear to the jury
that there had never been a knife and that the complainant had lied about that.
In short, both Crown and defence wanted the jury to understand that the correct
and undisputed version of events did not involve a knife.

[42]

I turn now to the appellants submission that the judge should have
charged more fully on the use to be made of the prior inconsistent statement. The
appellant relies on cases in which this Court ordered a new trial because the
judge failed to caution the jury that the out of court statements could not be
used to corroborate the witness testimony:
R. v. Ay
(1994),

93
C.C.C. (3d) 456 (B.C.C.A);
R. v. Dowding
, 2004 BCCA 583;
R. v. R.I.L.
,
2005 BCCA 257. In my view, those cases do not assist the appellant. They
involved prior statements by complainants consistent with the version of events
given in court. The jury was then invited to draw an inference concerning the
truthfulness of [the complainants] evidence based on what [the complainant]
had previously reported to third parties (
Dowding
at para. 26). In
the present case, as noted, the complainants prior statement about a knife is
properly characterized as an inconsistent statement. The truth of the statement
about the knife was not in issue.

[43]

I turn next to the submission that the jury was given no real guidance
on how to assess the inconsistency and the adequacy of the complainants
explanation for the change when assessing her credibility.

[44]

In my view, the judges charge was sufficient. First, he explained to
the jury the use that could be made of the prior statement:

but an out of court statement made by a witness which is
inconsistent with his or her testimony given under oath at the trial, may be admitted
for the purpose of testing the credibility of the witness. You can only use an
out of court statement by a witness to assess his or her credibility and not
for the truth of what was said on the previous occasion, except to the extent
it was adopted by her or him as true when that evidence was given at trial.

Anything a witness tells you in
this courtroom can be used as proof of the truth of what the witness says in
his or her testimony. On the other hand where a witness does not admit an out
of court statement is true, you can only use that out of court statement to
assess his or her credibility.

[45]

The judge did not expressly tell the jury to consider the complainants
explanation for the change in her version of events when assessing her
credibility. That explanation follows:

Q:        And out of -- out of fear, you say that you
invented this story about the man having had a knife?

A:         A knife, yes, nothing else though.

Q:        Now, a couple of days later you said you
remembered that you had said that to the police?

A:         Yes.

Q:        And you corrected that?

A:         Yes.

Q:        All right. And you corrected it because you
knew thered be some trouble for you if you didnt?

A:         I corrected it
because I knew it was wrong that -- that I had said that.

[46]

In my view, in the circumstances of this case, the judges instructions
were sufficient. The judge drew to the jurys attention the change in the
complainants story, her acknowledgement that she had been untruthful, and
instructed them to be particularly careful when assessing the complainants
testimony:

In this case you heard [the
complainant] testify about events alleged in the indictment. There is one
instance where her evidence in court was inconsistent with what she told the
police on the night in question, that is that the offender or Mr. Gillespie
had a knife during the sexual assault. She later told the police that the presence
of a knife was not true and she agrees that she had not been truthful and
corrected that a few days after. In this case credibility and reliability are in
issue, you need to be careful with respect to the testimony, and particularly
[the complainants] testimony, and must be tested in the light of all the other
evidence.

4.       Did
the judge err in failing to give the jury a limiting instruction on the use of
the evidence relating to what occurred at the trailer park?

[47]

The appellant submits the judge should have instructed the jury on the
limited use they could make of the events at the trailer park following the
sexual act. He contends the charge did not:

(a)      address the lack of probative value in the
post-offence conduct of the appellant; and

(b)      include a limiting
instruction to caution the jury against reasoning that the common assault, and
bad character displayed at the trailer park, made it more likely that the
appellant committed the sexual assault.

(a)     Lack of probative value of appellant
fleeing the scene

[48]

I begin by noting that post-offence conduct is circumstantial evidence
which may, in some cases, be probative of guilt:
R. v. White
, 2011 SCC
13 at paras. 22, 38. In
White
, Rothstein J. said at para. 42:

[42]      Thus,
Arcangioli
and
White
(1998)
should be understood as a restatement, tailored to specific
circumstances, of the established rule that circumstantial evidence must be
relevant to the fact in issue. In any given case, that determination remains a
fact-driven exercise.
Whether or not a given instance of post-offence
conduct has probative value with respect to the accuseds level of culpability
depends entirely on the specific nature of the conduct, its relationship to the
record as a whole, and the issues raised at trial
. There will undoubtedly
be cases where, as a matter of logic and human experience, certain aspects of
the accuseds post-offence conduct support an inference regarding his level of
culpability.

[Emphasis added.]

[49]

The appellant submits that evidence of his flight from the scene cannot
be probative of the sexual assault charge because he had admitted to another
offence which could equally explain that behaviour, relying on
R. v. Arcangioli
,
[1994] 1 S.C.R. 129.

[50]

In
Arcangioli
the accused was charged with aggravated assault in
connection with a stabbing which occurred during a fight. At trial, the accused
admitted punching the victim several times but testified that he fled when he saw
another person at the scene stab the victim in the back. The judge had
instructed the jury that the evidence of the accuseds flight was
circumstantial evidence of guilt. The Supreme Court of Canada held that the
judge had failed to instruct the jury properly regarding the use that could be
made of the evidence of the accuseds flight from the scene. The Court reasoned
that, to be useful, flight must give rise to an inference of consciousness of
guilt in relation to a specific offence: where an accuseds conduct may be equally
explained by reference to consciousness of guilt of two or more offences, and
where an accused has admitted culpability in respect of one or more of these
offences, a trial judge should instruct a jury that such evidence has no probative
value with respect to any particular offence (at 145).

[51]

I would not accede to this ground of appeal. First, Mr. Gillespie
did not admit to common assault. While counsel for the appellant focused little
attention on that charge and told the jury it was not what this case is about,
he did not formally admit to committing the offence. As a result, the judge
instructed the jury fully on the elements of common assault and left it with
them to decide. Further, contrary to the appellants assertion on appeal, Mr. Gillespie
offered an entirely innocent explanation for grabbing the complainants arm and
trying to pull her back towards the van. He said he was bewildered by her
behaviour and was trying to do the right thing by continuing to drive her home.

[52]

Second, as the appellant concedes, the evidence of what transpired at
the trailer park was relevant to the narrative, and to the state of mind of the
complainant. In my view, the events at the trailer park and on the parkway were
also relevant to Mr. Gillespies state of mind. There was evidence that Mr. Gillespie:

·

persistently
pursued the complainant when she ran away from him;

·

lied
to a witness at the trailer park, pretending that he knew the complainant and
that she always act[ed] this way when she was intoxicated;

·

tried
to get the complainant back into his van when they were on the highway even
though she clearly did not want to do so and other witnesses had intervened;
and

·

sped towards her as he left, almost hitting her.

In my view, the appellants action at the trailer park,
and on the highway, including the way he left the scene, were relevant to the
defence of honest but mistaken belief in consent and to his credibility.

[53]

In conclusion on this issue, the evidence of what transpired at the
trailer park and on the highway had probative value. This is not a case like
Arcangioli
where the probative value of the accuseds post-offence conduct was negated
because, having admitted to one of the two offences with which he was charged,
the accused may have fled the scene out of consciousness of guilt of the
admitted offence rather than out of consciousness of guilt of the remaining
charge. In the present case, Mr. Gillespies post-offence conduct had
probative value with respect to both charges. It was also relevant to his
defence of honest but mistaken belief in consent. It follows that a limiting
instruction about the use of that circumstantial evidence was not required.

(b)      Cautioning
against the use of bad character evidence and improper propensity reasoning

[54]

Mr. Gillespie submits the evidence of what happened at the trailer
park amounted to bad character evidence. He contends it was highly prejudicial
and required an instruction telling the jury not to use that evidence, or a
conviction on the common assault charge, to assume that Mr. Gillespie was
the kind of person who was likely to commit a sexual assault. He says the judge
should have instructed the jury to keep the evidence and counts separate in
their minds, and contends the non-direction in this regard amounted to an error
in law.

[55]

An instruction cautioning the jury not to engage in propensity reasoning
is generally required when an accused stands charged with multiple counts. But
jury instructions must be tailored to the circumstances of the particular case.
Where evidence does not relate to uncharged misconduct and is relevant to all
counts in an indictment, the need for a limiting instruction is attenuated:
R.
v. Sandhu
, 2009 ONCA 102 at paras. 1315.

[56]

In this case, as Mr. Gillespie concedes, the evidence relevant to
common assault  the grabbing of the complainants arm and attempts to pull her
back towards the van  was also inextricably connected to the narrative in the
immediate aftermath of the alleged sexual assault, and relevant to issues of
consent relating to that offence. What transpired at the trailer park was
probative of both Mr. Gillespies state of mind and the complainants.
Although giving rise to two charges, the events of that evening involved a
single incident. Telling the jury to consider the evidence of the common assault
separately from the evidence of the sexual assault would have confused them, as
they needed to assess the entirety of the evidence to resolve several of the live
issues on the sexual assault count.

[57]

Further, Mr. Gillespie had offered a coherent theory of the
incident as a whole. He said that he and the complainant had engaged in
consensual sexual activity, that he was concerned about her well-being after
she left the van, was trying to understand her erratic behaviour, and trying to
ensure she got home. In other words, he described his conduct in positive terms.
It would have been inconsistent with the defence theory of the case to suggest
to the jury that the accuseds conduct at the trailer park amounted to evidence
of bad character. It is therefore not surprising that defence counsel at trial
did not ask for the limiting instruction now said to have been essential to the
charge. In the circumstances of this case, it made little sense to do so. I
would not accede to this ground of appeal.

5.       Did
the judge fail to instruct on the proper use of the complainants hearsay
evidence and the opinion evidence?

[58]

The appellant identified four instances in which inadmissible evidence
made its way to the jury:

(a)      the complainants hearsay evidence that she
did not undergo a medical examination at the hospital on the night of the
events because she was too intoxicated to consent;

(b)      a lay witnesss opinion that, based on his
experience as a drug and alcohol counsellor who had seen it all, the
complainant appeared to be in the situation unwillingly;

(c)      another lay witnesss opinion that the
complainant had been roofied  common slang for having been given a drug unknowingly;
and

(d)      another witnesss
opinion that the appellant appeared to be intoxicated and on some chemical
substance.

[59]

Mr. Gillespie acknowledges that each of these pieces of evidence
appears not to have been deliberately elicited by the Crown, but says
nonetheless that the cumulative effect of the errors, in addition to those
already addressed, warrants a new trial. I will consider each instance in turn.

(a)      Complainants hearsay evidence

[60]

At the pre-charge conference, defence counsel raised a concern about the
complainants testimony in chief concerning events at the hospital on the night
in question. She said she had not been examined because she couldnt give her
consent because she was too intoxicated. He said it amounted to hearsay
because it implied she had been assessed by hospital staff to be incapable of
giving consent. The trial judge discounted this concern on the basis that the
complainant had not said that hospital staff told her she was too intoxicated
to consent.

[61]

The appellant says this evidence was hearsay, highly prejudicial and inadmissible.
He submits it amounted to unqualified opinion evidence going to the ultimate
issue  if the jury accepted the complainants evidence on this point, it could
have been misled into inferring that if she was too drunk to consent to a
medical examination she must have been too drunk to consent when she was in the
van with the accused.

[62]

The appellant says a mid-trial and final instruction should have been
given by the judge even in the absence of an objection or request from defence
counsel. As noted, trial counsel did raise a concern about the evidence at the
first pre-charge conference, but ultimately accepted that an instruction was
unnecessary because the complainant had not said someone told her that she was
too intoxicated to consent. In his closing submissions to the jury, defence
counsel stressed that only the complainant had said she could not consent to the
hospital examination, and that no one from the hospital had testified to
corroborate that evidence.

[63]

In my view, the absence of a defence objection at trial, although not
conclusive of the issue, demonstrates the lack of prejudice to the appellant
arising from this evidence. As Bastarache, J. observed in
R v. Daley
,
2007 SCC 53 at para. 58:

While not decisive, failure of
counsel to object is a factor in appellate review. The failure to register a
complaint about the aspect of the charge that later becomes the ground for the
appeal may be indicative of the seriousness of the alleged violation.

(b)      Complainants unwillingness to be in
the situation

[64]

One witness at the trailer park offered his opinion that he had been a
drug counsellor, had seen it all, and said:

Everything was there that  that
put signs up to me that she was not in this situation willingly. Bare feet,
terror, running, and literally telling  screaming at the guy, I dont know
you. Who are you? Stay away from me. I dont want to go with you.

[65]

In my view, this evidence was admissible as lay opinion evidence describing
a persons emotional or mental state:
R. v. Graat
,

[1982] 2
S.C.R. 819 at 835, 837;
R. v. Falkenberg
(1995), 95 C.C.C. (3d) 307 at
309 (Alta. C.A.), leave refd [1995] S.C.C.A. No. 88.

(c)      Evidence the complainant had been boofied

[66]

One of the witnesses from the trailer park testified that the
complainant appeared to be boofied, saying  it looked like she had been
was on or had been given something because that one time I had been boofied,
and thats what she looked like. The witness apparently misspoke, and intended
to use the word roofied. The evidence amounted to the witness saying the
complainant appeared to have taken drugs or to have been given a drug. Defence
counsel raised a concern at the first pre-charge conference about the use of
the term which could suggest the appellant had given the complainant a drug without
her knowledge, but the trial judge pointed out that the witnesss use of
boofied likely had not been understood by the jury, and the matter was
dropped.

[67]

In my view, the witnesss testimony went beyond permissible evidence as
to a persons appearance and emotional state, implying as it did that a drug
had been given to the complainant without her consent. However, an instruction
to the jury to ignore that evidence would have drawn the jurys attention to it
and, as the judge pointed out, it was not at all clear that the jury had understood
that the word boofied could mean slipping a drug to someone. It is again apparent
from the position of defence counsel at trial that he was content to let it be.
I see no error in the judge acceding to that approach.

(d)      Evidence about the appellants
intoxication

[68]

One witness at the trailer park testified about his interactions with Mr. Gillespie
when he was leaning into the van after Mr. Gillespie ran over his foot on
the parkway. The witness said that it looked to him that Mr. Gillespie was
on a drug because he was sweating profusely and had dilated pupils. The Crown
redirected the witness to give evidence about his observations only. The judge
provided a mid-trial instruction, telling the jury to ignore the evidence that
the appellant appeared to be on a chemical substance.

[69]

Defence counsel did not seek a final instruction in the charge about
this evidence, which is a significant indication that the mid-trial instruction
was seen to be sufficient. Again, I see no error in this regard.

(e)      The curative provision

[70]

In my view, even if the charge was deficient in some or all of the ways
identified by the appellant, those deficiencies were insignificant in the
context of the record as a whole. The evidence in this case overwhelmingly
supported the jurys verdict on the sexual assault count. I am of the view that
the verdict would necessarily have been the same even if the failings in the
charge had been corrected. I would therefore, in the alternative, rely on the
curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
.

Disposition

[71]

The appeal should be dismissed.

The
Honourable Madam Justice Fenlon

I AGREE:

The Honourable Madam Justice D.
Smith

I AGREE:

The Honourable Mr. Justice
Willcock


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Polygon Metalworks Intl Inc. v. Ellisdon Corporation,

2019 BCCA 20

Date: 20190110

Docket: CA45610

Between:

Polygon Metalworks
Intl. Inc.

Appellant

(Plaintiff)

And

Ellisdon
Corporation

Respondent

(Defendant)

Before:

The Honourable Madam Justice Saunders

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
August 28, 2018 (
Polygon Metalworks Intl Inc. v. Ellisdon Corporation
,
2018 BCSC 1448, Vancouver Docket S167197).

Oral Reasons for Judgment

The Appellant, appearing in person:

H. Popa

Counsel for the Respondent:

K. Johanson

S. Small, Articled
  Student

Place and Date of Hearing:

Vancouver, British
  Columbia

January 10, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2019

Summary:

The
appellant was one day late in presenting the appeal record for filing. It
missed the deadline due to technical problems in producing the binders. Held:
the appellants application to extend the time for filing (opposed by the
respondent), is granted. The respondent applied for an order security for costs
of the appeal be posted. Held: application granted. Security set at $7,000.

[1]

SAUNDERS J.A.
: There are two applications before me today, the
appellants application to extend the time for filing the appeal record and the
respondents application for an order the appellant post security for costs
within 30 days and that the appeal be stayed pending the security being posted.
The respondent proposes the amount to be posted as security for costs be
$9,215.

[2]

Logically the application for an extension of time should be decided
first because absent the extension the appeal cannot proceed.

[3]

The appeal is from a judgment in favour of the appellant in the amount
of $2,033.55. The litigation arises from a dispute on a construction project in
downtown Vancouver wherein the respondent subcontracted with the appellant to
provide and install stainless steel for the project. The original letter of
intent contemplated that the appellant would commence onsite work in September
2014. The parties further agreed that the appellants work would be completed
by November 2015.

[4]

As it turned out, the appellant could not start working on the project
until January 2015. It began installing stainless steel on site in or around
March 2015. On November 3, 2015, the respondent purported to terminate the
subcontract, citing the existence of outstanding work and claiming that the
appellant had contravened the agreed-upon schedule.

[5]

The appellant commenced an action for an amount far in excess of the
judgment it obtained.

[6]

The appellant filed a notice of appeal on September 26, 2018. The time
for filing the appeal record and transcripts expired on November 26, 2018. Mr. Popa
has appeared today as the principal of Polygon. He deposes he would have filed
the appeal record on November 26, but could not because of problems with printing
it and he did not have the pages available that day to have it compiled into
the bound document in time to file it in the court registry. That all was done
by November 27 but, he deposes, when he presented the appeal record to the
registry November 27, the registry refused to allow it to be filed on the
basis he was out of time.

[7]

The respondent, Don Ellis, opposes the extension of time saying that it
is not evident on the material filed the appellant has continuously intended to
appeal and that the appeal lacks merit. The respondent also says it is not in
the interests of justice that the appeal continue.

[8]

The test for an extension of time is well-known and is set out in
Davies
v. C.I.B.C.
(1987), 15 B.C.L.R. (2d) 256 (C.A.):

1.         Was there a
bona fide
intention to appeal?

2.         When were the respondents informed of the intention?

3.         Would the respondents be unduly prejudiced by an
extension of time?

4.         Is there merit in the appeal?

5.         Is it in the interests
of justice that an extension be granted?

The overarching consideration is always the fifth point  is
it in the interests of justice that an extension be granted?

[9]

The respondents submission relating to the appellants intention to
appeal relies upon a lack of evidence that transcripts have been ordered, the
fact that the filing of the transcripts is also out of time, and the absence of
any reference to this in todays application  the transcripts having been
required to be filed at the same time as the appeal record. Mr. Popa says
that the transcripts have been ordered, but the order for transcripts is not
reflected in any affidavit.

[10]

On balance I am satisfied the appellant has had a
bona fide
intention to appeal throughout that intention is demonstrated by the filing of
the notice of appeal in a timely way and the appellants attempt to file the
appeal record, albeit a day late, on November 27.

[11]

The larger consideration is the merits of the case. Because the appeal
is at such an early stage, it is difficult to discern the merits of the appeal.
I understand that the appellant contends both that findings of fact are
contrary to the documentary evidence and that the judge constricted his ability
to cross-examine. Doing the best I can and on the basis of what I know, it
seems that there is sufficient merit to warrant the extension of time. I will
say that as an appeal progresses more may be known that persuades a judge the
appeal is doomed to fail, but in this case I cannot say that now. It does seem
to me, however, that the appeal is not strong.

[12]

I consider in the circumstances that an extension of time to file the
appeal record is in the interests of justice. I would extend the time for
filing the appeal record to today, January 10, 2019.

[13]

I note that Mr. Popa still has to receive the transcripts of the
trial and that he will require an extension of time in order to file them,
absent consent. No doubt the evidence of when the transcripts were ordered will
be germane to such an application, and that will all be for a later date.

[14]

I turn to the application for security for costs. The test for security
for costs is set out by Mr. Justice Lowry in
Creative

Salmon
Company Ltd. v. Staniford
, 2007 BCCA 285 as follows:

[9]        The
jurisdiction to order security for costs of an appeal is found in s. 24 of
the
Court of Appeal Act
, R.S.B.C. 1996, c. 77. The appellant
against which such an order is sought bears the onus of showing why security
should not be required:
Kedia v. Shandro Dixon Edgson
, 2007 BCCA
57 at para. 4 (C.A. Chambers), Smith J.A. Generally, the considerations
are the appellant's ability to post security and the likelihood of costs awarded
being recovered from it, as well as the merits and the timeliness of the
application:
Southeast Toyota Distributors, Inc. v. Branch
(1997),
45 B.C.L.R. (3d) 163 (C.A.);
Milina v. Bartsch
(1985), 5 C.P.C. (2d) 124
at 125 (B.C.C.A. Chambers), Seaton J.A.; and
M.(M.) v. F.(R.)
(1997), 43
B.C.L.R. (3d) 98 at 101 (C.A. Chambers), Esson J.A.

The overarching concern is whether the
order sought is in the interests of justice.

[15]

Here the respondent has demonstrated it could
not locate exigible assets. The merits of the appeal are not strong. Mr. Popa
says in an affidavit he has no assets but he does not say that the appellant
has no assets; if he did say that, the statement would demonstrate that the
costs will not be readily recoverable. Mr. Popa says that the appellant,
which has been struck from the company register, is in the process of being
reinstated, but there are, we know, judgments already registered against the
company.

[16]

On balance, I consider that an order for
security for costs should be made. I would set the amount of security at $7,000
to be posted within 30 days. This order is accompanied by a stay of the appeal
until the security for costs is posted, except for the filing of the appeal
record that I have allowed and must be completed today.

[17]

All of this means, Mr. Popa, that to file
the transcripts needed to advance this appeal, you first must post the security
for costs and you will need an order allowing you to file the transcripts in
any event.

[18]

I have considered the respondents further
request for leave to apply to augment the amount of the security for costs in
the event unexpected applications or other court proceedings are required to
push this appeal to conclusion. I have decided not to make such an order. The
respondent, in that event, will have to simply rely upon our Rules for relief.

The Honourable Madam Justice Saunders