



WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An
    order restricting publication in this proceeding under ss. 486.4(1), (2), (3)
    or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4       (1)
Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)       any
    of the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada, 1970,
    as it read immediately before January 1, 1988; or

(b)       two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in any of
    subparagraphs (a)(i) to (iii).

(2)
In proceedings in
    respect of the offences referred to in paragraph (1)(a) or (b), the presiding
    judge or justice shall

(a)  at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the complainant of the right to make an application for the order;
    and

(b)  on
    application made by the complainant, the prosecutor or any such witness, make
    the order.

(3)
In proceedings in
    respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)
An order made under
    this section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6       (1)
Every person who fails to comply
    with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jorgge, 2013 ONCA 485

DATE: 20130718

DOCKET: C54282

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jimmy Jorgge

Appellant

Joseph Wilkinson, for the appellant

Jennifer Woollcombe, for the respondent

Heard: May 29, 2013

On appeal from the conviction entered on December 22,
    2010 and the sentence imposed on March 30, 2011 by Justice Janet M. Wilson of
    the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A.

introduction

[1]

Jimmy Jorgge appeals his convictions for sexual assault and
    administering a stupefying substance with intent to commit sexual assault, and
    his sentence of four years imprisonment.

[2]

The appellant raises several grounds of appeal against his convictions. 
    I will deal with only one of them because, in my view, it is decisive of this
    appeal.  This ground concerns one of the reasons why the trial judge found the
    appellants evidence not to be credible. She gave several reasons for rejecting
    his evidence. However, one important reason was that the appellant had
    tailored his trial testimony to fit the arguments raised on a
voir dire
into the admissibility of his statement to the police.  The trial judges
    reliance on this reason was an error because it undermined the appellants
    right to be present at his own trial.  As this error tainted the trial judges
    assessment of the appellants credibility, the appellant is entitled to a new
    trial.

B.

brief background

[3]

The appellant and the complainant met on a dating website.  In July 2008
    they met in person.  They went to a park near Lake Ontario to talk and drink
    wine.  Eventually they went back to the appellants condominium, drank more
    wine and had sexual intercourse.  Their evidence differed on whether their sexual
    activity was consensual.

(i)

The complainants evidence

[4]

The complainant testified that she did not consent to having sexual
    intercourse.  She said that while she was at the appellants condominium she
    began to feel tired, nauseous and paralyzed.  She said that when the appellant
    had intercourse with her she could not move or defend herself.  According to a
    toxicological report she had a date rape drug in her system  a commonly used
    antihistamine found in cold medicines and available over the counter.

(ii)

The
    appellants statement

[5]

The appellant gave a lengthy, videotaped statement to the police.  During
    the first half of his interview, the appellant maintained that the complainant
    consented to the sexual activity, that she was awake and that he did not drug
    her.  As the interview progressed, the police officer suggested that the
    appellant explain things to him so he would think the appellant had simply
    exercised bad judgment on this one occasion, and was not a serial sexual
    predator. In response to the officers comments, the appellant admitted that
    the complainant might have been asleep when he had sex with her, that perhaps
    he took advantage of the situation, and that he had shown poor judgment.  After
    a
voir dire
, the trial judge ruled that the appellants statement was
    voluntary and admitted it into evidence.

(iii)

The appellants evidence at trial

[6]

At trial, the appellant explained that crucial portions of his statement
    were untrue, and that he always thought the complainant had consented to their
    sexual intercourse.  He testified that he said what he did to the police
    officer because he felt pressured and wanted to end the interview.  He did not
    see a way out unless he told the officer something.

[7]

The appellant also denied that he had given the complainant any drugs. 
    Moreover, he relied on the toxicologists opinion that the drug found in the
    complainants system, even in combination with alcohol, would not cause the conscious
    paralysis the complainant recounted.

C.

discussion

(i)

The trial judges credibility findings

[8]

At the beginning of her reasons for conviction, the trial judge made her
    findings of credibility.  After unhesitatingly accepting the evidence of the
    complainant, she turned to the appellants evidence.  She concluded that where
    his evidence conflicted with that of the complainant, it was a clever web of
    small and big lies attempting to distance himself from the suggestion that it
    was his plan from the beginning to get [the complainant] to go to his apartment
    for the purpose of sex.

[9]

In reaching this conclusion, the trial judge rejected the appellants
    explanation for the admissions he made in his statement to the police.  In
    rejecting that explanation, the trial judge relied on the appellants having
    heard the arguments of counsel on the
voir

dire
before
    testifying at trial.  At para. 10 of her reasons she said:

I accept that Mr. Jorgge found the interview long and
    stressful, but I do not accept his evidence that he believed that he had to
    give some evidence to the police to conclude the interview.  Mr. Jorgge is
    intelligent and manipulative.  He was in control throughout the interview.  Mr.
    Jorgge had the benefit of listening to the various arguments raised by his
    counsel at the
voir

dire
.  He also understands now that
    consent to sexual relations means more than a woman not protesting as sexual
    activity progresses.

[10]

She
    returned to this theme a few paragraphs later, and expressly held that the
    appellant had tailored his evidence to fit the arguments of counsel.  At
    para. 12 she said:

I conclude that this evidence given by Mr. Jorgge at the trial
    when he said that unless I gave him something, I was never going to get out of
    there was evidence carefully tailored to fit the arguments raised by the Crown
    and his counsel during the
voir

dire
.

[11]

Then,
    at paras. 13-14, the trial judge concluded that the appellants statement to
    the police was truthful and that his trial evidence, given after hearing
    counsels submissions, could not be accepted:

I conclude that the evidence given by Mr. Jorgge in his
    statement about the sexual activity that took place on July 18, 2008, and in
    particular whether [the complainant] was moving or was inert as she was
    sleeping or passed out, is truthful.  I conclude that his commentary given at
    the trial is simply an attempt by Mr. Jorgge to distance himself from any
    concessions made in the statement relevant to the issue of consent now that Mr.
    Jorgge has a better understanding of the issues.

I conclude that his evidence given at the trial, when it conflicts
    with his prior statement, is an attempt to challenge the ruling as to the
    voluntariness of his statement after hearing the capable arguments of his
    counsel.  In drawing this conclusion I have considered all of the statement and
    all of Mr. Jorgges evidence at this trial.

(ii)

The
    trial judges reasoning is improper

[12]

There
    is a natural temptation to reason as the trial judge did in this case.  But
    this reasoning was improper because it subverted the appellants right to be
    present at his trial.  Under s. 650(1) of the
Criminal Code
, accused
    persons have a statutory right, indeed an obligation, to be present at their trial.
    Section 650(1) is grounded in an accuseds right to a fair trial and right to
    make full answer and defence, which are now guaranteed by ss. 7 and 11(d) of
    the
Canadian

Charter of Rights and Freedoms:
see
R. v.
    Laws
(1998), 41 O.R. (3d) 499, at p. 521;
R. v. Czuczman
(1986),
    54 O.R. (2d) 574, at pp. 576-577.

[13]

Yet
    in her assessment of the appellants credibility, the trial judge turned the
    appellants right to be present at his trial against him.  The trial judge was
    entitled to consider the inconsistencies between the appellants statement to
    the police and his testimony at trial.  She was not, however, entitled to attribute
    those inconsistencies to his presence at the
voir dire
.

[14]

In
    a series of three cases 
R. v. White
(1999), 42 O.R. (3d) 760;
R.
    v. Schell
(2000), 148 C.C.C. (3d) 219; and
R. v. Thain
, 2009 ONCA
    223, 243 C.C.C. (3d) 230  this court has condemned the kind of reasoning used
    by the trial judge to reject the appellants evidence.  In
White
and
Schell,
the court held that it was improper and unfair for the Crown to suggest an
    accuseds evidence was not credible because the accused had testified after
    receiving full disclosure.

[15]

In
White
, Doherty J.A. recognized the logic in the notion that accused
    persons can tailor their evidence to fit the disclosure they have received. 
    Nonetheless, he wrote at p. 767-8:

The line of questioning set out above seems calculated to suggest
    to the jury that the appellant's evidence was somehow suspect because he had
    received full disclosure and had not been subject to cross-examination prior to
    choosing to testify at trial.  Not only are the suggestions improper, they are potentially
    prejudicial.  As a matter of common sense, there may be considerable force to
    the suggestion that a person who gets full advance notice of the other side's
    evidence and testifies last is in a position to tailor his or her evidence to
    fit the disclosure. That inference, no matter how logical, cannot be drawn
    without turning fundamental constitutional rights into a trap for accused
    persons.  Where any such suggestion seeps into the cross-examination of an
    accused, it must be eradicated by the trial judge.

[16]

Rosenberg
    J.A. made the same point in
Schell
at paras. 56-57:

It was also an error to permit Crown counsel to cross-examine
    the appellant on his use of disclosure.  The appellant had a constitutional
    right to disclosure of the Crowns case through pre-trial disclosure and he had
    a statutory right to be present for the prosecutions case at the preliminary
    inquiry.  This was not a case where cross-examination on some aspect of the
    disclosure was a legitimate step in a proper cross-examination as in
R. v.
    Cavan
(1999), 139 C.C.C. (3d) 449 (Ont. C.A.).  Also see
R. v. White
(1999), 132 C.C.C. (3d) 373 (Ont. C.A.).  Unfortunately, this improper conduct
    did not end with the cross-examination.  Crown counsel also used this evidence
    in his jury address:

Chin [the deceased], as I said, cannot testifythe accused
    can.  He has had a long time to think about it.  He has had full disclosure. 
    He is able to have listened to the preliminary hearing and the testimony here. 
    And, quite frankly, he is in a position to tailor his evidence and just tell
    you as much as he wants to and as little as he wants to:  and I submit that is
    what he has done.  He has had a convenient memory in certain areas and relies
    on panic in another.  [Emphasis in original omitted.]

It was wrong and unfair for Crown counsel to attempt to exploit
    the appellants exercise of his rights.

[17]

Finally,
    in
Thain
, Sharpe J.A. similarly held that it was improper for the
    trial judge to have taken into account the accuseds receipt of disclosure in
    assessing his credibility.  In that case, the trial judge held that [t]he
    accuseds credibility must be assessed bearing in mind that his explanation
    comes long after disclosure was available to him and having regard to the
    totality of the evidence.  At para. 25 of his reasons for allowing the appeal,
    Sharpe J.A. said: In my view, in the circumstances here, the fact that the
    appellant received disclosure could not properly or fairly be said to bear upon
    the assessment of his credibility.

[18]

The
    context for these three cases differs from the case before us, but the
    underlying principle is the same.  In those other cases, either the Crown or
    the trial judge improperly used an accuseds right to disclosure to discredit
    the accuseds testimony.  In the present case, the trial judge improperly used
    the appellants right to be present at his trial to discredit his testimony. 
    She erred in doing so.

[19]

This
    error figured prominently in the trial judges adverse assessment of the
    appellants credibility.  Credibility was the significant issue at trial, in the
    light of the differing versions of events given by the appellant and the
    complainant.  In
Thain
, at para. 38, Sharpe J.A. said

[t]he
    appellant was entitled to have his credibility fairly assessed without being
    trapped by the exercise of his constitutional rights.  Similarly, Mr. Jorgge
    was entitled to have his credibility fairly assessed without being trapped by
    the exercise of his statutory right to be present at his trial.  Thus, his
    convictions cannot stand.  I would allow the appeal and order a new trial.

John Laskin J.A.

I agree S.T. Goudge
    J.A.

I agree David Watt
    J.A.

Released: July 18, 2013


