



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Niedermier,









2005
            BCCA 15




Date: 20050113




Docket: CA029702

Between:

Regina

Respondent

And

Barry Thomas Niedermier

Appellant











Before:



The
            Honourable Madam Justice Rowles





The
            Honourable Mr. Justice Hall





The
            Honourable Madam Justice Levine









S.R.A. Buck and
L.M. Sturgess



Counsel for the Appellant





B.A.
            MacLean



Counsel for the Respondent
            (Crown)





Place
            and Date of Hearing:



Vancouver, British Columbia





June 23, 2004





Place
            and Date of Judgment:



Vancouver, British Columbia





January 13, 2005









Written Reasons of the Court





Reasons for Judgment of the Court:

I.          Overview

[1]

The
      appellant appeals his conviction by a jury of
four counts of unlawful confinement, one count of sexual assault,
      one count of aggravated assault and one count of assault with a weapon.

[2]

The
      appellant was originally charged with 23 counts in relation to 12 separate
      complainants.  In a pretrial motion, the appellant sought severance and
      requested that each complainant be dealt with in a separate trial.  Crown
      counsel agreed that it would be appropriate to sever the "non-confinement
      counts" and the trial judge did so.

[3]

In
      the course of the severance application, the appellant argued that he would
      inevitably be prejudiced by the amount of bad character evidence and evidence
      of similar bad acts if all the charges were tried together.  He also argued
      that there would be significant problems with the credibility or reliability
      of the complainants for the following reasons: they were all drug addicts
      at the time of the alleged offences and three of the five were still using
      drugs; there was a delay of over two years before the complaints were made
      to the police; there was a risk of collusion because one of the complainants
      had seen a bad date report and others had been shown a photo of the appellant
      as a potential suspect in the missing women case or had read about him
      in the newspaper.

[4]

The
      application for severance was denied in relation to those counts where
      unlawful confinement was charged, in part because the trial judge anticipated
      that the evidence of each complainant would be admissible as similar fact
      evidence as between the various counts.

[5]

The
      trial proceeded on the following counts in an amended indictment:

Count 1: sexual
      assault of Ms. D.

Count 2: aggravated
      assault of Ms. D.

Count 3: assault
      with a weapon (lit cigarette) of Ms. D.

Count 4: unlawful
      confinement of Ms. D.

Count 5: unlawful
      confinement of Ms. L.

Count 6: unlawful
      confinement of Ms. B.

Count
      7: attempt to choke Ms. B. to assist himself to commit unlawful confinement

Count
      8: sexual assault of Ms. M.

Count
      9: unlawful confinement of Ms. M.

Count
      10: choking Ms. M. to assist himself to commit unlawful confinement

Count
      11: sexual assault with a weapon of Ms. R.

[6]

Convictions
      were entered on Counts 1 through 6 and Count 9.

[7]

The
      complainants were prostitutes who at the time of the alleged offences were
      all drug users. The appellant testified that he had been on one or more "dates" with
      all of the complainants.  He denied that he unlawfully confined any of
      them and that each of them was free to go at any time.  He testified that
      any sexual relations were consensual, in the context of a prostitute-client
      relationship.  The appellant said he hired the complainants to perform
      unusual sexual services for which he paid them crack cocaine or heroin.  He
      said the complainants all knew they got one toke of crack cocaine for every
      three he took as payment for performing oral sex.  The appellant smoked
      crack cocaine during the oral sex, which he repeatedly referred to as a "sociable
      suck".  The appellant denied he had ever struck any of the complainants
      and explained he would always obtain a woman's consent before hanging her
      from a door.

[8]

While
      the thrust of the overall defence was that there was actual consent to
      the activity between the appellant and the complainants, defence counsel
      requested that the trial judge also charge on honest but mistaken belief
      in consent as a defence to both the sexual assault and unlawful confinement
      charges.

[9]

There
      was evidence of substantial drug use by the appellant at the time of some
      of the alleged offences.  While the defence of intoxication was not advanced,
      defence counsel agreed that it was appropriate for the trial judge to put
      this defence to the jury for the specific intent offences of choking.

[10]

The
      grounds of appeal are that the trial judge erred:

A.         ...
in
      failing to instruct the jury that the complainants' evidence of
similar
      bad acts
by the Appellant could not be relied upon as proof that the
      accused was the sort of person to have committed the offences charged.  In
      the absence of this limiting instruction, the failure to sever the counts
      relating to other complainants deprived the Appellant of a fair trial.

B.         ... in instructing the jury that the defence of
      honest but mistaken belief in consent to
unlawful confinement
(1)
      was only available if the Appellant had taken reasonable steps to ensure
      the complainants consented to the alleged confinement and (2) was not available
      if induced by intoxication by crack cocaine.

[11]

For
      the reasons which follow, we would not accede to the first ground of appeal.  In
      relation to the second ground, we are all of the view that the trial judge
      erred in instructing the jury that the special provisions contained in
      s. 273.2 of the
Criminal Code
concerning limitations on the
      defence of mistake of fact as it applies to crimes of sexual assault also
      apply to the offence of unlawful confinement.  However, with the exception
      of Count 5, there was no air of reality to the defence on the other unlawful
      confinement counts of which the appellant was convicted and the proviso
      in s. 686(i)(b)(iii) of the
Criminal Code
is applicable.

II.         The evidence

(i)         Counts 1 through 4

[12]

Ms.
      D., the complainant in Counts 1 through 4, testified that after two hours
      in the hotel room with the appellant and after about 45 minutes of performing
      oral sex, she said she had to leave and got up to get her clothes.  The
      appellant "snapped," grabbed her by the throat and shoulder,
      and threw her onto the bed against the wall, saying, "You're not going
      anywhere."  He slapped her in the face, pushed her into a chair and
      tied her arms behind her around the chair back.  She was crying and begging
      him to let her go, but he kept her there in that condition for most of
      the next day and a half.  He called her names, burned her five times in
      the wrist, ankle and hip with cigarettes and struck her in the face with
      his penis.  Photographs taken of Ms. D. provide support for her testimony
      regarding the injuries she received as a result of the appellant's assaults
      on her.

[13]

Ms.
      D. testified that the appellant coerced her into smoking crack, telling
      her he would let her go if she did.  She said had wanted to stay drug-free
      for the purposes of the methadone program she was on and, she said, cocaine
      was never a drug of choice for her.  He taunted her with suggestions he
      would let her go if she did what he wanted, such as taking his penis in
      her mouth while she was tied in the chair.  When he wanted to play trivia
      she went along in order to attempt to placate him.  His sudden mood changes,
      anger and hostility kept her frightened and off-balance.  She thought it
      gave him a thrill to see how intimidated she was.  He escorted her to and
      from the bathroom.  After one such trip he pushed her onto the bed, pinned
      her down and engaged in forced intercourse with her, ignoring her pleas
      not to or to at least use a condom.  He also attempted sodomy.

[14]

According
      to Ms. D., when the appellant's dealer came by to deliver drugs, she was
      naked and tied in the chair.  The appellant told the man, "See what
      I can get women to do for me."  The man laughed and then left.  After
      that, things began "getting really weird": the appellant said
      he was an alien sent to judge earthlings and get rid of the bad ones.  He
      was serious and she thought he would kill her.  On the final morning he
      began to run out of cigarettes.  She was surprised when he agreed to let
      her go out to buy more.  She put on some clothes, went outside, and took
      a cab home.

[15]

The
      appellant testified that after Ms. D. had called the drug clinic to see
      if she could miss her appointment, they smoked drugs and played trivia
      together.  As he inhaled, she gave him the "sociable suck," which
      lasted only 10-15 seconds each time.  The appellant said Ms. D. stayed
      to smoke drugs and to make money to buy heroin.  He denied keeping her
      in the room against her will, grabbing her by the throat, pushing her onto
      the bed, slapping her face, tying her up in a chair, calling her names,
      burning her, attempting intercourse and saying he would let her go if she
      took a toke.  He said she only stayed until about 3 or 4 a.m. on the day
      after he picked her up.

(ii)        Count 5

[16]

Ms.
      L., the complainant in Count 5, testified that the appellant had picked
      her up near her home after meeting her earlier that day on the downtown
      eastside.  After leaving the appellant's store she considered their date
      over as she had performed oral sex as agreed but had not been paid.  On
      the way back towards her place he kept telling her she was stupid not to
      trust him, that he would pay her, and that she was making a big mistake.  The
      appellant told Ms. L. that she should trust him and that he could help
      her.  He was getting loud and she was becoming leery of him.  However,
      she gave him another chance and decided she would complete the date if
      he paid her.

[17]

After
      the appellant bought some cocaine downtown and they were driving, Ms. L.
      began asking for her money again.  He became angry, so she tried to go
      along with him to calm him down, until she decided she had had enough and
      said that she wanted to go home.  He stalled, then became angry, yelling
      that she was a "piece of shit".  Ms. L.'s attempts to defend
      herself made him even angrier, and he screamed in her face, in a manner
      which was out of control.  He called her "stupid" and "worthless".  She
      continually asked to go home.  He was smoking cocaine and driving towards
      her place, saying he was taking her home.  He turned around without stopping
      and kept on driving.  She was crying hard and saying she wanted to go.

[18]

Eventually,
      he ran out of cocaine and asked her for money.  Fearing he would take it
      by force, she gave him the $40 she had.  He drove downtown to buy more
      cocaine.  She was too scared to attempt to get out of the car, as he was
      standing outside her door.  Finally, when the sun was up and they were
      near her place again, he stopped at a stop sign.  She opened the door,
      jumped out and ran.  She estimated she had been in the car for four hours.

[19]

Ms.
      L. admitted that the appellant never told her she could not get out of
      the car, but she said she believed that she could not leave, and did not
      get out of the vehicle because she was scared.  She thought the car door
      was locked.  She did not try to leave the car while the appellant was out
      of the car buying crack cocaine.

[20]

In
      his testimony concerning Ms. L., the appellant agreed that he drove around
      with her in the car until about 5 or 6 a.m., and that they were within
      two blocks of her place "mega times."  He said it just happened: "you
      get carried away, I do anyway."  He denied that he did it deliberately
      to "mess with her mind," and said she could have gone home anytime.  He
      said she was smoking drugs in the car with him and that they smoked, perhaps,
      up to $2000 worth of drugs that night.  He denied that she was crying or
      that he was angry with her.  He denied swearing at her, calling her names,
      or yelling at her.  He said she had become upset because she did not know
      what to tell her boyfriend.  In the end, he dropped her off when she wanted
      in front of her house.


(iii) Count 6

[21]

Ms.
      B., the complainant in Count 6, testified that she is 5'4" tall and,
      at the time of the incident, weighed 89-90 pounds.  She estimated the appellant
      as being 6'3" tall and weighing 240 pounds.  After the point in her
      date at the appellant's apartment when the dealer and a girl named Penny
      left the first time, the appellant told her to go into the bedroom.  She
      said she needed to hurry as she was meeting someone.  He said, "wait,
      not yet," and told her to "suck his cock."  She did so as
      he was taking tokes.  He held her head down, preventing her from lifting
      her head or breathing properly, and he was strangling her with his hands,
      telling her to do it harder and faster.  She said she wanted to stop, that
      the appellant need not to worry about the money, and that she would just
      go.  He told her that she was not leaving.  He was getting angrier and
      told her to shut up and do what she had been instructed to do.  He punched
      her in the chest and pinched her nipples, calling her stupid.  She started
      crying.  Her lips were bleeding, and she was gagging and vomited bile on
      him.  It seemed to go on forever.  At times she took a toke, not because
      she wanted to, but because she was scared of him and hoped that if he ran
      out of cocaine, she could leave.  He refused to let her use the washroom
      and made her urinate in a cup in the bedroom.  She felt degraded, scared,
      intimidated and humiliated.  He was large in stature, angry, and "into
      things that aren't healthy," and he had hurt her.

[22]

Ms.
      B. testified that the appellant tied a long stretchy telephone cord around
      her neck tight enough that she had trouble swallowing.  When his crack
      ran out, he also tied her hands behind her with the cord before leaving
      the room to make a call.  The dealer and Penny came back.  Ms. B. said
      she was naked on top and still had the cord around her neck.  She mouthed "help
      me" to Penny, who ignored her.  The appellant bought some heroin for
      her and she smoked it.  After the dealer and Penny left, the appellant
      led her using the cord "like a leash" back into the bedroom,
      tied the cord to the inside doorknob, and told her to "suck his cock".  She
      did so, but was crying and saying that if he let her leave she would not
      tell anyone; she just wanted to go home.  He told her no, to shut up and "suck
      his cock", saying, "you're nothing but a prostitute and a bitch."

[23]

By
      the morning of the third day the appellant was very sweaty, stinky, dirty
      and angry, and was yelling and spitting at her.  His girlfriend, Diane,
      came into the apartment.  She saw Ms. B., who still had the cord around
      her neck, became enraged, and had a shouting match with the appellant,
      saying "not again ... it has to stop."  After she left, he told
      Ms. B. to get dressed as they were going for cocaine.  When they arrived
      downtown she jumped out of the moving car and ran.  She said she was too
      scared to try leaving when the dealer and Penny left; they did not help
      her and she felt she would not safely be able to get away from the appellant,
      especially with the cord around her neck.  She believed she was in a very
      dangerous situation.

[24]

According
      to the appellant, he and Ms. B. sat around, smoked drugs and "hung
      out"; it was the "same old, same old", she gave him the "sociable
      suck", which lasted only 10-15 seconds each time.  He said he might
      have showed her the belt, and it was possible he put it around her neck
      and hung her over the door, as she was a good friend.  He denied wrapping
      a phone cord around her neck, tying her to the doorknob, tying her hands,
      making her urinate in a cup, holding her head down as she performed oral
      sex, punching her in the chest or strangling her with his hands.  He also
      denied that she was crying, that she said she wanted to stop or to leave,
      that her lips were cracked and bleeding and that she vomited while providing
      oral sex.  He said she could have been there for over a day and it was "quite
      possible" Diane came home while she was there.

(iv)      Counts 8, 9 and
        10

[25]

Ms.
      M., the complainant in Counts 8, 9 and 10, testified that she is 5'8" tall
      and weighs 130 pounds.  She estimated the appellant to be 6'4" or
      6'2" in height and 220-240 pounds.  She said she agreed to provide
      oral sex and intercourse for $100, which would compensate for an hour of
      her time.  The appellant paid her $40 up front.  At his place, she kept
      asking for the rest of her money and he repeatedly told her she would get
      it.  He was smoking cocaine and she had a toke or two when they first arrived
      there.  He told her to "suck my dick" as he continued to smoke
      cocaine, but he could not maintain an erection and told her it was her
      fault.  After "a good hour" of this she asked for her money again.  He
      said, "There's the door, there's the phone.  You think you can make
      it to either?"  He told her again, "suck my dick, and get it
      hard."  His anger continued to grow and he yelled at her to try harder.  When
      he emerged from the washroom and caught her trying to use the phone, he "bitch-slapped" her
      with a backhand that sent her flying.  She said he was far bigger than
      she was and she knew he was going to do whatever he wanted with her, so
      she played stupid and went along with his wishes.

[26]

She
      said he attempted intercourse both vaginally and anally, but without success.  Eventually
      he took her into the bedroom to "play a game".  He picked up
      a tie, put it around her neck and hung her with it over the door, pulling
      her up off the floor.  She could not breathe or speak; she blacked out
      for an instant and urinated on both herself and the carpet.  This made
      the appellant angry.  She said she was terrified and was crying, but thought
      he wanted to see her fear, so she tried to act like it was not "a
      big deal".  After this, she was coerced into taking a toke.  She also
      injected once with heroin in his bathroom as he remarked, "you fucking
      junkies".  When she asked to leave, he called her a "fucking
      bitch", saying she was "not done sucking his dick yet" and
      was not going anywhere.  In total, he hanged her four or five times, saying, "I
      just can't scare you, can I Bugsy?"  For several more hours she was
      made to perform oral sex while he smoked cocaine.  After about 18 to 20
      hours he took her down to the street and waited until she got a cab back
      downtown.

[27]

The
      appellant testified that Ms. M. was probably there for a couple of nights.  They
      smoked drugs and she provided oral sex for 10-15 seconds each time.  He
      denied that the agreement included intercourse.  He said he lifted her
      once or twice over the door with a belt, not a tie, around her neck and
      said he would have told her about it first.  He did not actually remember
      engaging in the belt incident with her, but said that she had agreed to
      do it.  The appellant testified that he had asked about ten women to do
      this, and about five or six had agreed.  He denied that she was crying,
      that she "peed" herself, and that he had been angered over that.  He
      also denied the "there's the door, there's the phone" statement,
      that he "bitch-slapped" her, and that he became angry when he
      could not climax.  When asked about what they did for 18-20 hours, he said
      they were smoking dope, watching TV and listening to CDs.

III.        Trial Judge's
        ruling on the use of the similar fact evidence

[28]

After
      the close of evidence, the trial judge ruled that the complainants' evidence
      would not be admitted as similar fact evidence as between counts because
      the evidence did not have sufficient probative value to outweigh its prejudicial
      effect.  In her ruling, the trial judge listed the difficulties with the
      credibility and reliability of each complainant and, applying the test
      in
R. v. B(L); G(M.A.)
(1997), 116 C.C.C. (3d) 481 (Ont.
      C.A.) at 494, decided that the probative value of the pattern of evidence
      did not clearly outweigh its prejudicial effect.  The trial judge concluded
      that "notwithstanding the obvious similarities in their evidence and
      the clear pattern of evidence which emerges," it would be fundamentally
      unfair to allow the jury to consider the similar fact evidence involving
      the other complainants when assessing the credibility and reliability of
      each individual complainant.

[29]

When
      the trial judge ruled against the Crown's application to use the similar
      fact evidence as between counts, the trial judge said she would give instructions
      to the jury to undo the harm of the jurors having heard so much evidence
      of similar bad acts.  Although no complaint was made by defence counsel
      at the time the charge was given, the appellant now argues that in her
      charge, the trial judge failed to instruct the jury to ignore or disabuse
      their minds of the clear similarities in the allegations of the various
      complainants.

IV.        Did the trial judge's failure
        to instruct the jury to ignore or disabuse their minds of the similarities
        in the allegations of the various complainants result in an unfair trial?

[30]

Before
      the jury had heard any evidence, the trial judge obviously recognized that
      there was a risk of the jury misusing the evidence of the appellant's discreditable
      conduct in arriving at their verdicts and that firm and clear instructions
      were required to avoid such prejudice.  In her opening remarks, the trial
      judge instructed the jury that evidence of the accused's bad character
      could not be used to determine his guilt or innocence and that the jury
      could not use bad character evidence to conclude "that the accused
      is a bad person, and, therefore, he is more likely to have committed the
      offences with which he's charged" or "that the accused may be
      the sort of person who would commit the offences with which he's charged."

[31]

During
      the Crown's case, some of the complainants made abusive and insulting remarks
      directed at the appellant and his counsel.  At one point, in the absence
      of the jury, the trial judge cautioned one of the complainants to control
      herself.  Before cross-examination of the complainant resumed, the judge
      instructed the jury to ignore the complainant's comments about the appellant's
      conduct with other prostitutes.

[32]

During
      the cross-examination of another complainant, outbursts of a similar nature
      occurred.  Defence counsel complained that the outbursts were prejudicing
      his client's right to a fair trial and observed that the insults directed
      at him were actually assaults on his client's character.  The trial judge
      thereafter instructed the jury to disregard the complainants' comments
      and, in particular, their insults directed at the appellant and his counsel
      and the assertions that the appellant had offended against many women.
      The trial judge said, in part:

. . . throughout
      the trial, but particularly in the last week, although really it goes back
      to day one, there have been a number of remarks that have been made which
      have been aimed directly at Mr. Niedermier.  Witnesses have screamed at
      him; they have insulted him, called him a variety of insults.  And, lastly,
      we heard, unfortunately, the very same kind of remarks and insults, which
      were hurled at and screamed at Mr. Buck.

Mr. Buck,
      as I recall it last week, was called a liar.  He was called a goof.  He
      was told  pardon the vernacular  to fuck off.  One witness screamed at
      the top of her lungs that he was an evil man.  And my impression is, and
      I'm not sure what yours is, but I'm so concerned about my impression that
      I'm making these remarks now, but my impression is that while those remarks
      may have been screamed at Mr. Buck, they were, for all intents and purposes,
      aimed at his client, Mr. Niedermier.

[33]

The
      trial judge reminded the jury that the character of the accused was not
      on trial and urged the jury to keep an open mind.  In that regard, the
      trial judge gave the following instruction:

Any evidence which you consider to be bad character evidence
      cannot be used by you to determine the guilt or the innocence of the accused.  You
      cannot use any bad character evidence to conclude that the accused is a
      bad person, and, therefore, more likely to have committed the offences
      with which he's charged.  You cannot use any bad character evidence to
      conclude that he may be the sort of person who would commit the offences
      with which he's charged.  It's unpleasant to hear about the things that
      have occurred, but that is not something that can bootstrap an argument,
      in your mind, that he is, therefore, guilty.

[34]

As
      previously noted, at the conclusion of the evidence, the trial judge ruled
      against the Crown's application to use the similar fact evidence as between
      counts.  Prior to the Crown's final address to the jury, the trial judge
      cautioned counsel to avoid the error in
R. v. Rarru
, [1996]
      2 S.C.R. 165, 107 C.C.C. (3d) 53, in which Crown counsel had invited the
      jury to consider a pattern in the accused's conduct when assessing the
      credibility of both the accused and the complainants.  In this case, both
      Crown and defence counsel emphasized in their closing addresses that the
      jury had to consider the evidence respecting each complainant separately.

[35]

The
      way in which the trial judge structured her charge would have been a helpful
      guard against the jury misusing the evidence.  The trial judge reviewed
      the evidence of each complainant on each count along with the corresponding
      testimony of the appellant and in that way was able to illustrate for the
      jury how they were to consider the evidence.  The effect of that approach
      would reinforce the judge's instruction that the evidence of each complainant
      had to be considered separately.

[36]

The
      judge's charge included the following instructions:

... The law
      requires that you find Mr. Niedermier not guilty, first, if you believe
      him; secondly, you must find him not guilty if, after a careful consideration
      of all of the evidence, you are unable to decide whom to believe, and finally,
      even if you do not believe his testimony, if you have a reasonable doubt
      after considering the evidence as a whole, including the testimony of the
      accused, you must again find him not guilty.  Now, when I said, "considering
      the evidence as a whole," I mean the evidence relating to a particular
      count, because the one thing you will not do in this case is consider the
      evidence of, say, four of the complainants when considering the question
      of guilt of the accused relating to a count concerning the fifth complainant.  There
      will be no cross-count consideration.

* * *

... You will
      assess [Ms. D's] credibility based on all of the evidence you have heard
      from her and any other evidence from the other witnesses which is relevant,
      like McKenzie [the hotel clerk] and Fenton [Ms. D's roommate], but remember
      you will not be looking to the evidence of any of the other complainants,
      and you must make a decision that she either consented in her mind, or
      she did not [concerning the  element of consent with respect to count 1:
      the sexual assault of Ms. D].

* * *

Now remember, as I have told you several times, that you must
      return verdicts on each particular count based only on the evidence which
      applies to that count, and it would be entirely wrong - - you are forbidden
      from using the evidence relating to one complainant in relation to counts
      involving a different complainant.

[37]

In
      the course of her charge, the trial judge directed the jury on ten occasions
      to consider the evidence of each complainant separately from the others.  The
      prominence given to that instruction is illustrated by the following passage
      in the judge's charge:

... There are
      five complainants and there is one accused.
And again, and this is
      very important, you must consider the evidence relating to each of the
      complainants separately in deciding whether the accused is guilty in respect
      of the counts relating to each individual complainant.  You must not use
      the evidence of one complainant to determine the accused's guilt in respect
      of the counts involving a different complainant.  I think as defence counsel
      suggested yesterday, and it was a nice way of remembering the concept,
      you are effectively deciding five different trials.

[Underlining added.]

[38]

In
      our view, the judge's instructions were such that the jury could not have
      been left in any doubt that they were not to use propensity reasoning in
      arriving at their verdicts and that the evidence of one complainant could
      not be used to support the Crown's case in relation to counts involving
      other complainants.  On at least three separate occasions, the trial judge
      instructed the jury that they were not to use any evidence about discreditable
      conduct by the appellant to infer that he was guilty, that he was the sort
      of person who would commit the offences charged, or that he was more likely
      to have committed the offences charged or any other offences.  That the
      trial judge had repeatedly cautioned against propensity reasoning is clear
      from the following passage in her charge:

Now, as I mentioned
      at the outset and as I mentioned during the trial itself, in this case
      there has been a good deal of evidence provided by the complainants, and
      indeed by Mr. Niedermier himself, about the kind of behaviour which Mr.
      Niedermier has engaged in, and as counsel pointed out to you, you may consider
      his behaviour immoral.  You might even be repulsed or perhaps even revolted
      by the evidence he has given about his own conduct with one or more of
      the complainants.  You may think that this evidence amounts to evidence
      of bad character which reflects badly on Mr. Niedermier, but please remember,
this
      is extremely important, this evidence
cannot be used by you for the purpose of determining his guilt on the
      basis that he is a person of bad character and therefore more likely to
      have committed the offences which are set out in the indictment.  Your
      role is not to pass judgment on Mr. Niedermier's character.
This trial is a solemn inquiry to
      determine whether the Crown has proven beyond a reasonable doubt whether
      Mr. Niedermier is guilty of the 11 counts with which he is charged, but
      it is not a trial of his character.

[Underlining added.]

[39]

The
      appellant urged in argument before us that the trial judge ought to have
      specifically instructed the jury to ignore the similarities in the complainants'
      evidence and that the absence of such an instruction resulted in an unfair
      trial.  In our view, giving such an instruction in this case would have
      been confusing and unhelpful for it would have drawn to the jury's attention
      the similarities in the evidence of the complainants and would have courted
      the very sort of reasoning the jury had been told to avoid by considering
      the evidence of each complainant separately.

[40]

We
      would not accede to the first ground of appeal.

V.         Did
        the learned trial judge err in her instructions to the jury on unlawful
        confinement?

[41]

In
      the second ground of appeal the appellant alleges various errors in the
      instructions the trial judge gave on unlawful confinement.
The appellant argues that the trial
      judge: (1) erred in instructing the jury as to the essential elements of
      the offence of unlawful confinement when the restraint is psychological
      rather than physical; (2) erred by failing to point out evidence that could
      support the defence of honest but mistaken belief in consent to unlawful
      confinement in such circumstances; (3) erred in directing the jury to consider
      whether the appellant took reasonable steps to determine whether the complainants
      did not want to be confined when considering that defence; and (4) erred
      in charging the jury that the defence is not available if the honest but
      mistaken belief in consent is caused by intoxication.

[42]

In
      view of the appellant's arguments on this ground, it may be useful to begin
      by setting out the elements of the offence of unlawful confinement and
      to make reference to some of the jurisprudence on s. 279(2) of the
Criminal
      Code
.

[43]

Section
      279(2) provides:

Every one who,
      without lawful authority, confines, imprisons or forcibly seizes another
      person is guilty of

(a)        an indictable offence ....

[44]

What
      constitutes unlawful confinement was considered in
R. v. Gratton
(1985),
      18 C.C.C. (3d) 462 (Ont. C.A.), leave to appeal to the Supreme Court of
      Canada refused [1985] 1 S.C.R. viii.  In that case, Cory J.A., as he then
      was, approved the following definition of unlawful confinement, at 473:

... physical restraint, contrary to the wishes of the person
      restrained, but to which the victim submits unwillingly, thereby depriving
      the person of his or her liberty to move from one place to another, is
      required in order to constitute forcible or unlawful confinement. Such
      confinement need not be by way of physical application of bindings.

[45]

The
      definition of unlawful confinement in
Gratton
was accepted
      as "the state of the law in Canada" by LeBel J.A., as he then
      was, in
R. v. Tremblay
(1997), 117 C.C.C. (3d) 86 (Que. C.A.)
      at 93.  In
Tremblay
, the accused had offered the complainant,
      a waitress in a bar, a ride home at the end of her shift. She accepted
      his invitation but after getting into his car, the accused repeatedly refused
      to follow her directions to her home.  The complainant escaped by opening
      the unlocked car door and jumping out of the moving vehicle.  At trial,
      the defence moved for a directed verdict, arguing that the Crown had not
      established the intention to forcibly confine.  The trial judge granted
      the motion and acquitted the accused because the complainant had voluntarily
      entered into the vehicle where the alleged confinement had taken place.  On
      appeal the verdict was set aside and a new trial was ordered.

[46]

Mr.
      Justice LeBel held that the offence of unlawful confinement is committed "as
      soon as a person's movement is restricted, voluntarily and with full knowledge
      thereof" (at 90).  The required
mens rea
or mental element
      is the intention to confine but, as LeBel J.A. pointed out at 92: "the
      intent to forcibly confine a person can be inferred from all of the accused's
      actions."

[47]

Moreover,
      a state of confinement may develop over time, as LeBel J.A. observed, at
      92:

The forcible confinement must have lasted a significant period
      of time.  However, in order to find forcible confinement, the Crown is
      not required to show that the victim was prevented from moving from one
      place to another as of the very first moment that the victim is in the
      presence of the accused.  The existence of initial liberty can be followed
      by the development of a state of forcible confinement ....

[48]

The
actus
        reus
of the offence requires proof of: (1) a confinement, (2) the
        confinement is without lawful authority, and (3) a lack of consent by
        the complainant to the confinement.  Proof of the first two elements
        is objective; the third, subjective.  The third element, which is not
        referred to in s. 279(2), was the subject of discussion in
R. v.
        Gough
(1985), 18 C.C.C. (3d) 453 (Ont. C.A.), in which the constitutionality
        of s. 279(3) (formerly s. 247(3)) of the
Criminal Code
was
        in issue.  Section 279(3) of the
Criminal Code
reads:

279(3)
In proceedings under this section, the fact that the person in relation
      to whom the offence is alleged to have been committed did not resist is
      not a defence unless the accused proves that the failure to resist was
      not caused by threats, duress, force, or exhibition of force.

[49]

In
Gough
,
      the accused and the complainant had lived together for about five years.  The
      complainant had broken off the relationship after the accused had refused
      to continue to go to professional counselors to assist in controlling his
      temper and to prevent his physical abuse of the complainant.  At the time
      of the alleged offence, the complainant was in a vehicle driven by the
      accused going to Sault Ste. Marie where her parents and brother lived.  During
      the course of the journey, no resistance was offered by the complainant.  The
      trial judge instructed the jury that s. 279(3) applied and that the fact
      that the complainant "did not resist is not a defence open to Mr.
      Gough unless he can prove that her failure to resist was not caused by
      any of those three things, threats, duress, force or exhibition of force..."

[50]

In
      considering whether s. 279(3) was unconstitutional by reason of s. 11(d)
      of the
Charter
(the right to be presumed innocent) Cory J.A.
      said, at 458:

The importance
      of s. 247(3) derives from the essential elements the Crown is required
      to prove in proceedings under s. 247(2), namely, that the confinement,
      imprisonment or forcible seizure was against the will or without the consent
      of the victim.
Although lack of consent is not specifically referred
      to in s. 247(2), it must be a requisite element of the offence.  Otherwise
      the section could apply in the most innocent situations.
A friend
      driving a co-worker to the office confines him in the car...  The passenger
      by word or deed consents to being confined in the car.  The consent must
      exempt the driver from the provisions of s. 247(2)...
Thus if the Crown
      fails to prove beyond a reasonable doubt that the confinement was without
      the consent of the victim, the accused must be acquitted of the charge
      that he contravened s. 247(2)
.

[Underlining added.]

[51]

In
      concluding that the reverse onus provision in s. 279(3) could not be constitutionally
      justified, Cory J.A. observed (at 461-462):

... The appreciation
      of the state of mind of another person is something so subjective that
      to require the accused to establish that a specific state of mind [respecting
      threats or duress] did not exist is patently unreasonable and fundamentally
      unfair.

The onus imposed by s. 247(3) is neither necessary
      nor usual. For example, the former charge of rape did not require the accused
      to establish that the failure of the complainant to resist intercourse
      was not caused by his threats, duress, force or exhibition of force.  Rather
      the Crown was required to prove beyond a reasonable doubt that any apparent
      consent to intercourse was occasioned by the threats, duress, force or
      exhibitions of force of the accused. The victim in a rape case could not
      be in any better position to establish the elements of the offence than
      a victim of forcible confinement.

[52]

In
R.
          v. Pete
(1998), 131 C.C.C. (3d) 233 (B.C.C.A.), this Court
          agreed with the reasoning and result in
Gough
that s.
          279(3) is constitutionally invalid.

[53]

We
      turn now to the errors the appellant argues the trial judge made in her
      charge on the offence of unlawful confinement.  As set out in his factum,
      the appellant argues that the trial judge erred by:

(a)        not
      explaining that the ambiguous conduct of [Ms. M.], [Ms. L.], and [Ms. B.]
      (ie. lack of resistance, no attempt to escape, and drug use with the Appellant)
      might raise a reasonable doubt as to whether the Appellant appreciated
      that the complainants felt they were being confined.

b)         instructing
      the jury to decide whether the complainants consented to
be confined
      by the Appellant
instead of using more appropriate neutral language
      such as whether they consented to be in the Appellant's company or apartment.

c)         instructing
      the jury that the defence of honest but mistaken belief in consent
is
      not available if the Appellant did not take reasonable steps to ascertain
      if the complainant was consenting
.

d)         instructing
      the jury that the defence of honest but mistaken belief in consent was
      not available if it was caused by intoxication or if it was "an intoxicated
      mistake," despite (1) the position of both Crown and defence that
      the Appellant was
not
intoxicated at the time of the offences and
      (2) the absence of any expert evidence on how the consumption of cocaine
      would have effected the Appellant.

[Emphasis in original.]

[54]

The
      respondent's position on the first two points is that the trial judge's
      instructions on the elements of unlawful confinement were correct and that
      the jury would have understood that confinement for the purposes of the
      offence meant absent the complainant's consent.  As to the other points,
      the respondent's primary position is that the defence of honest but mistaken
      belief in consent to confinement had no air of reality.  In the alternative,
      the respondent's position is that any errors in the charge respecting this
      defence are harmless and had no effect on the verdicts.

[55]

The
      first two complaints do not appear to us to have merit.  The trial judge's
      instructions on the elements of the offence of unlawful confinement were
      correct.  As to the appellant's complaint that the trial judge could have
      used more neutral language when she spoke of the complainants consenting
      to be confined by the appellant, we note there was no objection made to
      this language by defence counsel at trial following the completion of the
      instructions to the jury.  We think it must have been plain to everyone
      in the courtroom that the judge was simply pointing out to the jury that
      it was for them to assess whether or not any consent given by the complainants
      to activity by the appellant continued to be effective having regard to
      the course of events of the alleged incidents of confinement.  There was
      considerable discussion in the instructions about "consent" because
      this concept was important not only to the confinement counts but also
      to the sexual assault counts.  It does not seem to us that the jury could
      have misunderstood their duty to consider this issue of consent having
      regard to their verdicts of acquittal on certain of the counts alleging
      sexual assault of different complainants.  We should think that there would
      be no doubt by the jury that the complainants consented to accompanying
      the appellant for the purposes of sexual commerce, but the issue was whether
      what occurred thereafter went beyond the bounds of what they had consented
      to do.  In our view, the judge did not err in her instructions in the manner
      suggested by the appellant in his argument on the first two points.

[56]

On
      the other two complaints, we think it important in this case to consider
      what the jury concluded, as demonstrated by their verdicts, concerning
      the various counts, some 11 in number, that were before them in this trial.  The
      jury returned four guilty verdicts against the appellant on various offences
      related to the complainant Ms. D.  They also convicted the appellant of
      the unlawful confinement of the complainants Ms. L., Ms. B. and Ms. M.  They
      acquitted the appellant of attempting to choke the complainant Ms. B.  That
      count, as well as a similar count involving the complainant Ms. M., involved
      a crime where specific intent was at issue.  Thus drunkenness could amount
      to a defence of these two offences.  The trial record was replete with
      evidence that in the course of nearly all of the events involving these
      complainants, the appellant had been ingesting drugs.  One of the questions
      directed by the jury to the trial judge after they had retired to deliberate
      concerned the issue of drunkenness.  It seems clear that because of the
      evidence about the appellant's ingestion of drugs, the jurors were left
      in a state of reasonable doubt as to whether, by reason of his condition
      of sobriety, the appellant was capable of having the requisite intent for
      conviction on these offences requiring proof of specific intent.

[57]

Concerning
      their acquittal of the appellant on two counts related to Ms. M., sexual
      assault and choking (Counts 8 and 10), there was evidence in this case
      that at times subsequent to the event of which she had complained, the
      complainant Ms. M. had again willingly accompanied the appellant.  Concerning
      the charge of sexual assault, she had been paid some money and it could
      reasonably have been found by the jury that she assented to the sexual
      activity.  The acquittal of the appellant on these particular counts involving
      the complainants Ms. B. and Ms. M. indicates a careful consideration of
      the evidence on the part of the jury.  It seems rationally explicable on
      the evidence why the jury did not find the appellant guilty on the counts
      we have mentioned.  Either the dubious quality of the evidence, subsequent
      inconsistent conduct by Ms. M., or a doubt about proof of the requisite
      intent having regard to the mental state of the appellant, could certainly
      have sufficed to raise a reasonable doubt concerning the guilt of the appellant
      on these particular counts.

[58]

With
      regard to the complainant Ms. R., the acquittal of the appellant on Count
      11 of the indictment related to this complainant, a count that alleged
      sexual assault against her, was in our view logically founded on the state
      of the evidence.  The evidence of this witness and the evidence of the
      appellant concerning his relationship with this witness, and the material
      events testified to by them respectively, could well have led the jury
      to have doubts about whether this offence was proven to the requisite degree
      of proof.  In particular, the discrepancies and improbabilities in her
      narrative regarding how she escaped from a third floor apartment where
      she claimed she was being mistreated by the appellant did not square with
      other testimony and physical evidence.  If she had leaped from that height
      as she testified, given the nature of the ground below, it is clear that
      she would have suffered grievous injuries.  The terrain she described and
      the actual terrain below the apartment were greatly at variance.  Perhaps
      more significantly, there was cogent evidence from an independent witness
      at trial that the sliding door she allegedly escaped through was virtually
      inoperable.  Given the nature of the evidence relating to this count, it
      seems not at all surprising that a jury would have reasonable doubt about
      whether this count had been proven by the Crown.  This verdict of acquittal
      seems entirely explicable having regard to the state of the trial evidence.

[59]

With
      respect to the complainant Ms. D., the appellant was convicted of four
      counts: sexual assault; aggravated assault; using a weapon while committing
      an assault; and confinement of Ms. D.  He was also found guilty of confining
      Ms. L., Ms. B. and Ms. M.  The testimony of the complainants and the appellant
      concerning the events underlying the convictions registered against the
      appellant by the jury have been previously narrated in these reasons.  Ms.
      D. testified that she had been tied to a chair by the appellant and had
      been assaulted in various ways including being burnt with a cigarette.  She
      said she had been kept in a hotel room by the appellant against her will
      for a period of nearly two days.  Concerning Ms. D., the trial judge told
      the jury:

Now, the sixth ingredient is knowledge
      of lack of consent.  Crown has to prove that Mr. Niedermier knew that Ms.
      [D.] did not consent, and, again, you have to consider Ms. [D.]'s evidence
      as to her words and her actions and all of the surrounding circumstances,
      and you have to consider the accused's evidence about what occurred in
      the hotel room.  If you accept her evidence concerning her words and her
      actions, her begging him to be let go and to stop, then you should have
      little difficulty deciding that Mr. Niedermier knew that she was not consenting
      to the sexual activity, or at best that he knew she was not submitting,
      or was not resisting, because of the violence or threats of violence upon
      her.

[60]

Ms.
      L. testified that she had been kept confined in a vehicle driving around
      the city for several hours one night by the appellant.  She acknowledged
      that he had never told her that she could not get out of the car but she
      said she was too intimidated to try.  Ms. L. acknowledged that on one occasion
      at a location near Pigeon Park in the downtown Eastside he was out of the
      car for a time, but because he was near the car and no other persons were
      about, she felt she had no opportunity to escape.  She said on several
      occasions he appeared to assent to driving her near the area of her home
      where she could leave him but as he would approach he would turn away and
      continue driving.  She agreed he never said she could not leave but she
      nonetheless felt she could not escape.  She said the car door was locked
      and she was afraid to try to unlock it because of her fear of the appellant.  Eventually,
      after she had loaned him some money and it was daylight, he let her off
      near her home.  He testified he did not mean to confine her but as he was
      driving around he said "he got carried away" and kept driving.

[61]

Ms.
      B. said she was kept in an apartment by the appellant for a lengthy period
      and was subjected to various assaults by the appellant.  She said that
      at one stage she had to urinate into a cup when the appellant refused her
      permission to go the bathroom.  She said he held her head down and would
      not let her up while she was performing oral sex on him.  She also testified
      that the appellant tied a telephone cord around her neck and tied that
      cord to the inside knob of the bedroom door.  She testified that although
      she was crying and had told the appellant that if he would let her go she
      would tell no one, she was kept confined for approximately two days.  She
      testified that he eventually drove her back downtown and she jumped out
      of the car near Hastings and Main Street.

[62]

Ms.
      M. testified that she was partially paid for some sexual activity but when
      she demanded the balance owing to her she was told by the appellant to
      relax and not worry about it.  She said, "I had a feeling not to force
      the issue that it would be futile.  I had no idea yet how futile."  She
      testified that after she had been in the apartment for some time and he
      had reprimanded her for not doing a good job in sexually arousing him,
      he told her, "There is the door, there is the phone.  Do you think
      you can make it to either?"  She said that once she tried to make
      a telephone call, but when he discovered what she was doing, he gave her
      a sufficiently heavy blow that she went flying across a futon located in
      the room.  She testified that on one occasion while she was being abused,
      she urinated on the carpet.  She said in evidence that she was openly crying
      and that she had been kept against her will at this apartment for nearly
      a day.  At a time she fixed around the halfway point in her confinement,
      she said she had asked him to let her leave the premises but in answer
      she said he roughly grabbed her arm and said, "Here, I'll give you
      something to whine about."  Her evidence was that she could not successfully
      escape from the apartment because she had never been permitted to be out
      of the sight of the appellant.  Her evidence, if accepted by the jury,
      was indicative of circumstances that could not fail to make it plain to
      the appellant that she wanted to get out of the apartment and away from
      him.

[63]

To
      properly respond to the appellant's complaint concerning the charge to
      the jury on the defence of honest belief in consent, it is useful to begin
      with a discussion of a leading case on the issue of honest belief in consent.  Indeed,
      perhaps one of the earliest was
Director of Public Prosecutions v.
      Morgan
, [1975] 2 All E.R. 347, a decision of the House of Lords.  The
      appellant Morgan and his three friends, all members of the R.A.F., had
      been out drinking.  Morgan told his friends that they ought to have sex
      with his wife and that though she might pretend to resist, in fact she
      would welcome their advances.  Lord Hailsham said this about the testimony
      of the wife, at p. 354:

According to the version of the facts
      which she gave in evidence, and which was evidently accepted by the jury,
      she was aroused from her sleep, frog-marched into another room where there
      was a double bed, held by each of her limbs, arms and legs apart, by the
      four appellants, while each of the three young appellants in turn had intercourse
      with her in the presence of the others, during which time the other two
      committed various lewd acts on various parts of her body.

[64]

At
      trial the appellants asserted that everything had been done with her consent
      and that she was an enthusiastic participant in the proceedings.  The jury
      convicted the appellants.  The question of law that was ultimately dealt
      with in the case was whether the trial judge had been correct in instructing
      the jury that if they came to the conclusion that the complainant had not
      consented but that the appellants believed or may have believed that she
      was consenting, they must nevertheless find the defendants guilty of rape
      if they were satisfied the appellants had no reasonable grounds for believing
      her consent.  The decision of the House of Lords contains a full and helpful
      discussion of the law relating to mistake of fact as a defence to a criminal
      charge.  Amongst other cases, the well known decision of
R. v. Tolson
,
      [1889] 23 Q.B.D. 168, was discussed.  By a majority of three to two the
      Law Lords found that all that was required was that an accused hold an
      honest belief that a woman was consenting in order to be acquitted and
      that it was not necessary that this belief should be a reasonable one.  Of
      course, reasonableness would be something that a jury would assess when
      dealing with such a defence.  However, despite the error in the summing
      up by the trial judge, all of the Law Lords were of the view that the appeal
      ought to be dismissed because there was no basis in the evidence for the
      appellants to have believed that the wife was consenting if she had behaved
      as she testified.  Lord Hailsham of St. Marylebone said at p. 355:

The choice before the jury was thus
      between two stories each wholly incompatible with the other, and in my
      opinion it would have been quite sufficient for the judge, after suitable
      warnings about the burden of proof, corroboration, separate verdicts and
      the admissibility of the statements only against the makers, to tell the
      jury that they must really choose between the two versions, the one of
      a violent and unmistakeable rape of a singularly unpleasant kind, and the
      other of active co-operation in a sexual orgy, always remembering that
      if in reasonable doubt as to which was true they must give the appellants
      the benefit of it.  In spite of the valiant attempts of counsel to suggest
      some way in which the stories could be taken apart in sections and give
      rise in some way to a situation which might conceivably have been acceptable
      to a reasonable jury in which, while the victim was found not to have consented,
      the appellants, or any of them could conceivably either reasonably or unreasonably
      have thought she did consent, I am utterly unable to see any conceivable
      half-way house.  The very material which could have introduced doubt into
      matter [
sic
] of consent goes equally to belief and vice versa.

[65]

Lord
      Cross of Chelsea put the matter this way, at p. 353:

The question which then arises as
      to the application of the proviso is far easier of solution.  I suppose
      that cases may occur in which the problem which was discussed at such length
      on this appeal may be of more than academic interest but on the facts of
      this case it was of no practical importance whatever.  If the appellants
      when they came to give evidence had said that what Mrs. Morgan had said
      was perfectly true, that she had never at any stage given any sign that
      she was consenting to  let alone enjoying  the intercourse, but that
      they were so much influenced by what her husband had told them that they
      believed throughout that her manifestations of unwillingness were only
      play acting, then it is conceivable that a jury, on a proper direction,
      might have acquitted them.  They might, that is to say, have said to themselves
      that though it was almost incredible that any young men could have been
      so stupid yet, having seen and heard them, they would give them the benefit
      of the doubt.  But the appellants chose  most unwisely  to challenge
      the truth of Mrs. Morgan's evidence and to assert that although to start
      with she manifested some unwillingness when it came to the point she co-operated
      in the proceedings with evident relish.  So, as the judge made clear at
      the outset of his summing-up, the only real issue in the case was whether
      what took place in the Morgan's house that night was a multiple rape or
      a sexual orgy.  The jury obviously considered that the appellants' evidence
      as to the part played by Mrs. Morgan was a pack of lies and one must assume
      that any other jury would take the same view of the relative credibility
      of the parties.  That any jury which thought that the grounds for a belief
      in consent put forward by the appellants which if truly held would have
      been eminently reasonable, were in fact never entertained by them at all,
      should in the same breath hold that they may have had an honest belief
      in consent based on different and unreasonable grounds is inconceivable.

[66]

The
      House of Lords concluded that the defence of mistake of fact had no air
      of reality having regard to the evidence.  Thus any error in the charge
      by the judge was not of consequence.

[67]

Not
      long after the decision in the
Morgan
case, the Supreme Court
      of Canada dealt with this issue in the well known case of
Pappajohn
      v. R.
, [1980] 2 S.C.R. 120, 52 C.C.C. (2d) 481, 4 W.W.R. 387.  The
      court was divided on the issue of whether or not the trial judge should
      have left the defence of honest but mistaken belief in consent to the jury
      on the facts of that case.  There was, however, no disagreement that reasonable
      belief was not required in addition to honest belief in order for such
      a defence to succeed.  Honest belief would suffice to found a valid defence.  Martland
      J. speaking for himself held that in the circumstances of the case it was
      not necessary to reach a decision on this issue or to reconsider the correctness
      of
Beaver v. R.
, [1957] S.C.R. 531.  The majority of the
      Supreme Court of Canada accepted the proposition that a belief only had
      to be honest; it need not necessarily be reasonable.  This of course accorded
      with the majority decision of the House of Lords in the
Morgan
case.  The
      dissenting opinion of Dickson J. (as he then was) contains a very helpful
      analysis of earlier authorities including English and Commonwealth authorities.

[68]

In
      the
Pappajohn
case, the trial judge had found that on the
      facts of the case it would not be appropriate to put to the jury the defence
      of honest but mistaken belief in consent on the part of the complainant.  The
      appellant appealed from his conviction to this Court and his appeal was
      dismissed by the majority: (1978), 45 C.C.C. (2d) 67, [1979] 1 W.W.R. 562.  The
      majority was of the view that the trial judge did not err in declining
      to instruct the jury on this issue, but the dissenting judge would have
      required such an instruction.  On further appeal to the Supreme Court of
      Canada, the majority judgment of the British Columbia Court of Appeal was
      affirmed.

[69]

In
      that case there was no question that there had been sexual relations between
      the parties, but the complainant asserted that she had resisted throughout.  The
      appellant said that she had consented to sexual activity but had become
      alarmed when he began to engage her in some bondage exercise and thereafter
      she ran naked out of the house and arrived at a neighbouring house in a
      distraught condition.  McIntyre J. giving the judgment of the majority
      said this at 131-132 (cited to S.C.R.):

...
      bearing in mind that the object of the judicial search must be evidence
      of a mistaken but honest belief in the consent of the complainant, one
      must first ask the question "Where is this evidence to be found?"  It
      cannot be found in the evidence of the complainant.  She denies actual
      consent and her evidence cannot provide any support for a mistaken belief
      in consent.  Her conduct, according to her description, is that of a terrified,
      hysterical, non-consenting woman who resisted the appellant's advances,
      albeit unsuccessfully, and when able fled from his house in search of assistance.  Turning
      then to the evidence of the appellant, it immediately becomes apparent
      that his evidence speaks of actual consent, even cooperation, and leaves
      little if any room for the suggestion that she may not have been consenting
      but he thought she was.
The two stories are, as has been noted before,
      diametrically opposed on this vital issue.  It is not for the trial judge
      to weigh them and prefer one to the other.  It is for him in this situation,
      however, to recognize the issue which arises on the evidence for the purpose
      of deciding what defences are open.  In this situation, the only realistic
      issue which can arise is the simple issue of consent or no consent.  In
      my opinion, the trial judge was correct in concluding that there simply
      was not sufficient evidence to justify the putting of the defence of mistake
      of fact to the jury.  He left the issue of consent and that was the only
      one arising on the evidence
.

[Underlining added.]

[70]

The
      majority found that because there was no air of reality in the evidence
      supporting such a defence, it was not necessary for the trial judge to
      put this matter to the jury.  A similar conclusion was reached by a majority
      of the Supreme Court of Canada in the case of
R. v. Osolin
(1993),
      86 C.C.C. (3d) 481.

[71]

Following
      the case of
Pappajohn
, the government was lobbied to make
      amendments to the
Criminal Code
to narrow the breadth of
      the defence of mistake of fact in cases of sexual assault.  The
Criminal
      Code
was thereafter amended to provide that belief in consent would
      not be a defence to a charge of sexual assault if an accused's purported
      belief arose from intoxication, recklessness or wilful blindness or if
      the accused had not taken reasonable steps to ascertain that the complainant
      was consenting (s. 273.2).  Section 265(4) of the
Criminal Code
requires
      a judge instructing a jury in an assault case where such a defence is advanced
      to instruct the jury "when reviewing all the evidence relating to
      the determination of the honesty of the accused's belief, to consider the
      presence or absence of reasonable grounds for that belief."

[72]

The
      special provisions of the
Criminal Code
contained in s. 273.2
      concerning limitations on the defence of mistake of fact as it applies
      to crimes involving sexual assault are not applicable to the offence of
      confinement.  When the trial judge instructed the jury, she fell into error
      when she suggested to them that these provisions could be applicable on
      the confining counts contained in the indictment.  What falls to be assessed
      is the result of this error.  If there was a proper basis in the evidence
      for this defence to be left to the jury, this error could have the potential
      to work an injustice on the appellant.

[73]

In
      our opinion, in the case of Ms. L., there was a reasonable basis in the
      evidence for this defence to be left to the jury.  The testimony concerning
      this count left before the jury a situation with ambiguous features.  If
      the defence was going to be left, a proper instruction was required.  As
      previously noted, there was some element of ambiguity in the activities
      that went on between the appellant and Ms. L.  They were together in a
      car driving to various points in and about the city for many hours.  While
      Ms. L. gave some indication that she was uncomfortable with being kept
      in the car and that she wanted to be released, there were also indications
      in the evidence that she never clearly suggested to the appellant that
      she wanted to leave his presence.  Given the totality of the evidence on
      this count, we are of the view that it was appropriate for this defence
      to be left with the jury in the case of Ms. L.  The appellant was charged
      only with confining Ms. L. and with no other offences related to her.  Because
      of the error in the instructions, we would order a new trial on the charge
      of confining Ms. L.

[74]

However,
      as regards the other three complainants with respect to whom the appellant
      was convicted of charges of confinement, we see no realistic basis in the
      evidence for this defence of mistake of fact to have been left to the jury.  In
      the case of Ms. D., if the jury accepted her evidence, there could be no
      suggestion that the appellant could have held any belief that she was consenting
      to being kept in the room, and that is equally so in the cases involving
      the other complainants, Ms. B. and Ms. M.  In all of those cases, there
      was a stark divide between the evidence of the appellant and the evidence
      of the complainants concerning the factual circumstances of the incidents.  If
      what the appellant testified to had occurred in those respective cases,
      then it is apparent that the complainants were consenting and willing to
      participate in everything that occurred and had been subjected to no abuse.  It
      would parallel the situation found to exist in
Morgan
.  On
      the other hand, if the evidence that the complainants gave about these
      events was accepted by the jury as truthful, then there was no evidentiary
      foundation for this defence to be left to the jury.  The circumstances
      were factually and legally similar to
Morgan
and
Pappajohn
,
      having regard to the state of the evidence in this case relating to these
      particular counts.  Therefore, in our opinion, there was no necessity in
      this case for the judge to leave the defence of mistake of fact to the
      jury on those counts.  In these circumstances, any error in the instructions
      concerning these counts concerning the confinement of these complainants
      was harmless error.  The sole issue was whether or not the evidence of
      the complainants sufficed to prove the offences beyond a reasonable doubt
      and there was no need for the judge to give any instruction about honest
      belief in consent.

[75]

As
      Lord Hailsham observed in the
Morgan
case, "the choice
      before the jury was thus between two stories each wholly incompatible with
      the other."  We consider that any error in the instructions given
      to the jury about mistake of fact concerning these counts was inconsequential.  It
      appears to us therefore to be an appropriate case in which to apply the
      curative proviso, s. 686(1)(b)(iii) of the
Code
.  In the
      result we would order a new trial on Count 5 but otherwise would not accede
      to the arguments the appellant has advanced under the second ground of
      appeal.

[76]

In
      summary, with the exception of Count 5 on which the appeal is allowed and
      a new trial ordered, the appeal is dismissed.

The
      Honourable Madam Justice Rowles

The
      Honourable Mr. Justice Hall

The Honourable Madam Justice
      Levine

Correction:
05 April 2005

Counsel for the appellant were in
      the wrong order.


