R. v. Davis

R. v. Davis
Collection
Supreme Court Judgments
Date
1999-11-25
Report
[1999] 3 SCR 759
Case number
26441
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.; Binnie, William Ian Corneil
On appeal from
Newfoundland and Labrador
Subjects
Appeal
Criminal law
Notes
SCC Case Information: 26441
Decision Content
R. v. Davis, [1999] 3 S.C.R. 759
Glenn Norman Davis Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Davis
File No.: 26441.
1999: February 26; 1999: November 25.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory,* McLachlin, Major and Binnie JJ.
on appeal from the court of appeal for newfoundland
Criminal law – Extortion – Extortion of sexual favours – Complainants persuaded to pose nude or semi-nude for accused who misrepresented himself as having connections with modelling agencies – Extortion of sexual favours by threatened exposure of compromising photographs – Whether extortion offence in Criminal Code includes extortion of sexual favours – Scope of word “anything” in extortion provision of Criminal Code – Criminal Code, R.S.C. 1970, c. C-34, s. 305(1).
Appeals – Supreme Court of Canada – Appeals as of right – Kienapple principle – Accused obtaining sexual favours from complainant by threatened exposure of compromising photographs – Supreme Court upholding both extortion and sexual assault convictions – Kienapple issue not raised in dissenting judgment in Court of Appeal – Whether Supreme Court has jurisdiction to address Kienapple issue – Supreme Court Act, R.S.C., 1985, c. S-26, s. 691(1) (a).
Criminal law – Kienapple principle – Extortion – Sexual assaults – Accused obtaining sexual favours from complainant by threatened exposure of compromising photographs – Whether principle against multiple convictions arising from same delict precluded convictions for both extortion and sexual assault.
Criminal law – Sexual assaults – Defence of honest but mistaken belief in consent – Whether trial judge failed to consider defence of honest but mistaken belief in consent – If so, whether there was air of reality to defence.
Criminal law – Sexual assaults – Reasonable doubt – Whether trial judge erred in applying principle of reasonable doubt – Whether trial judge’s comment that he was “not convinced” that complainants consented to sexual activity reversed burden of proof.
Between 1984 and 1991, the accused, holding himself out as a photographer with connections to a modelling agency, invited the complainants, who ranged in age from 15 to 20, to pose for a portfolio of photographs with a view to initiating a modelling career. He persuaded all of them to pose nude or semi-nude, and some of them were photographed in bondage. The accused allegedly sexually assaulted the complainants D., K., S. and R. while they were posing in various stages of undress or were tied up and completely vulnerable. In the cases of B. and D., it was alleged that the accused threatened to send revealing photographs to either their parents or to a pornographic magazine if they did not agree to perform sexual favours for him. While D. ignored the accused’s threats, B. acceded to them and performed sexual favours over the course of a two- to three-month period in exchange for the negatives. In her testimony, B. indicated that during that period there were at least two incidents in which the accused persisted in sexual activity after she had communicated her lack of consent. The accused testified that any sexual activity between B. and himself was consensual and that the photography sessions began after they had already been involved in a sexual relationship. He thus had no reason to threaten to expose the complainant, and never did so. In the case of D., the accused admitted taking her photos, but denied that any semi-nude photos were taken or that any sexual impropriety had occurred. He also denied trying to extort sexual favours from her, as there were no photographs with which to threaten her. With respect to K., S. and R., the accused claimed that any sexual contact was consensual. The trial judge convicted the accused of two counts of extortion against B. and D. and of five counts of sexual assault against the five complainants. On appeal, the majority of the Court of Appeal upheld the convictions.
Held: The appeal should be dismissed.
It is a crime to extort sexual favours. Although the extortion provision is located in the Part of the Criminal Code entitled “Offences Against Rights of Property”, the word “anything” in the provision is not limited to things of a proprietary or pecuniary nature. Headings will never be determinative of legislative intention, but are merely one factor to be taken into account. In this case, the extortion provision’s location in the Criminal Code is outweighed by competing considerations in determining the scope of “anything”. First, the ordinary meaning of “anything” in its immediate context is clear and supports a broad interpretation, which would include sexual favours. Second, an interpretation of “anything” that includes sexual favours is suggested by the purpose and nature of the offence of extortion. That purpose, which can be directly inferred from the wording of the provision, is that extortion criminalizes intimidation and interference with freedom of choice. Given this objective, it would be unreasonable to criminalize extortion of money or property, but not extortion of sexual favours. Third, Parliament could have easily limited the scope of the word “anything” to things of a proprietary or pecuniary nature. Finally, a number of Canadian courts have found that “anything” includes sexual favours.
It is unnecessary in this case to decide whether there is consent to sexual activity if it is obtained by threatened exposure of nude photographs. The accused’s conviction of sexually assaulting B. may be affirmed on the basis of an independent sexual assault, wholly apart from his extortionate conduct. B. testified that, during the two- to three-month period in which she went to the accused’s apartment and had sexual intercourse with him in exchange for the negatives, there were at least two incidents in which the accused persisted in sexual activity after she had unambiguously communicated her lack of consent. The trial judge found B. to be a credible witness and this Court is satisfied that the events unfolded as the complainant described them. This evidence supports a conviction of sexual assault.
Even though this is an appeal as of right pursuant to s. 691(1) (a) of the Criminal Code and the dissenting judge in the Court of Appeal dissented only on the extortion and sexual assault convictions in relation to B., the Court has jurisdiction to address the application of Kienapple in the case of B. The Court’s jurisdiction over both the extortion and sexual assault convictions must, of necessity, include the jurisdiction to make whatever order that is required to dispose of these grounds of appeal. The Court cannot make an order that would violate established principles or rules of law. In the case of B., there is a possibility that in affirming the convictions without considering the potential application of Kienapple the Court might be convicting the accused of multiple offences arising from the same delict. Such a disposition would be illegal, as it would contravene an established legal principle. Here, there is not a sufficient factual nexus between the extortion and sexual assault convictions to trigger the application of Kienapple in the case of B. The convictions arise out of different factual transactions. Any one of the occasions over the two- to three-month period in which the accused engaged in sexual activity with B. is sufficient to ground the extortion conviction. By contrast, the sexual assault conviction arises from one or two specific occasions in which B. explicitly communicated her lack of consent to sexual contact.
In the case of K., assuming, without deciding, that the trial judge failed to consider the defence of honest but mistaken belief in consent, a review of the evidence leads to the conclusion that there was no air of reality to the defence. Even if the testimony of the accused is completely accepted, it discloses that, at a minimum, he was wilfully blind as to whether K. consented to the fondling of her breasts and vagina. There is no suggestion by the accused that K. posed nude for any reason other than to further her modelling career. Nor was there any evidence that she invited him to touch her prior to his fondling of her breasts and vagina.
The trial judge did not err in his application of the principle of reasonable doubt. He clearly directed himself properly and his judgment reveals a thorough review of the evidence. In the cases of S. and R., the trial judge’s remarks that he was “not convinced” that the complainants consented to the sexual activity in question suggest, when read out of context, that he may have reversed the burden of proof. These remarks, however, when viewed in the context of the entire judgment, were effectively neutralized by other passages.
Cases Cited
Applied: R. v. Bird (1969), 9 C.R.N.S. 1; considered: Kienapple v. The Queen, [1975] 1 S.C.R. 729; referred to: R. v. Coughlan (1992), 100 Nfld. & P.E.I.R. 326; R. v. Caskenette (1993), 80 C.C.C. (3d) 439; R. v. Guerrero (1988), 64 C.R. (3d) 65; R. v. W. (D.), [1991] 1 S.C.R. 742; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. McCraw, [1991] 3 S.C.R. 72; R. v. Clemente, [1994] 2 S.C.R. 758; R. v. Vasil, [1981] 1 S.C.R. 469; Paul v. The Queen, [1982] 1 S.C.R. 621; R. v. Natarelli, [1967] S.C.R. 539; Attorney-General of Canada v. Jackson, [1946] S.C.R. 489; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Skoke-Graham v. The Queen, [1985] 1 S.C.R. 106; R. v. Lohnes, [1992] 1 S.C.R. 167; R. v. D.K.P. (No. 1) (1991), 11 W.A.C. 302; R. v. Bloch-Hansen (1977), 38 C.C.C. (2d) 143; R. v. Prince, [1986] 2 S.C.R. 480; R. v. Ewanchuk, [1999] 1 S.C.R. 330; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Park, [1995] 2 S.C.R. 836; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Esau, [1997] 2 S.C.R. 777; Sansregret v. The Queen, [1985] 1 S.C.R. 570.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1906, c. 146, ss. 450, 451, 452, 453, 454.
Criminal Code, R.S.C. 1927, c. 36.
Criminal Code, R.S.C. 1970, c. C-34, ss. 155, 246.1(1)(a) [ad. 1980-81-82-83, c. 125, s. 19], 305(1).
Criminal Code, R.S.C., 1985, c. C-46, ss. 265(3) (b), 271(1) (a), 273.2 [ad. 1992, c. 38, s. 1], 346(1) [rep. & sub. c. 27 (1st Supp.), s. 46 ], 691(1)(a) [am. 1991, c. 43, s. 9 (Sch., item 9)].
Criminal Code, S.C. 1953-54, c. 51, s. 291.
Criminal Code, 1892, S.C. 1892, c. 29, ss. 402, 403, 404, 405, 406.
Theft Act 1968 (U.K.), 1968, c. 60, ss. 21, 34.
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan. Toronto: Butterworths, 1994.
Mewett & Manning on Criminal Law, 3rd ed. Toronto: Butterworths, 1994.
Oxford English Dictionary, vol. 1, 2nd ed. Oxford: Clarendon Press, 1989, “anything”.
Smith, John Cyril, and Brian Hogan. Criminal Law, 8th ed. London: Butterworths, 1996.
Williams, Glanville L. “Blackmail”, [1954] Crim. L. Rev. 79.
Winder, W. H. D. “The Development of Blackmail” (1941), 5 Modern L. Rev. 21.
APPEAL from a judgment of the Newfoundland Court of Appeal (1998), 159 Nfld. & P.E.I.R. 273, [1998] N.J. No. 16 (QL), dismissing the accused’s appeal from his conviction of five counts of sexual assault, one count of extortion and one count of attempted extortion by Easton J., [1993] N.J. No. 143 (QL) (S.C.). Appeal dismissed.
Robin Reid, for the appellant.
Wayne Gorman, for the respondent.
The judgment of the Court was delivered by
1 The Chief Justice – This is an appeal as of right of the appellant’s convictions of five counts of sexual assault and two counts of extortion involving five complainants. The appellant challenged his convictions on a number of grounds. The main issue to be decided in this appeal is whether the scope of the offence of extortion as set out in the Criminal Code includes the extortion of sexual favours.
I. Factual Background
2 The appellant was charged with a total of 10 counts involving seven complainants: four counts of sexual assault contrary to s. 246.1(1)(a) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 271(1) (a)), on complainants C.B., P.V.B., T.R., and C.D.; two counts of extortion contrary to s. 305(1) (now s. 346(1)) involving complainants P.V.B. and C.D.; one count of buggery contrary to s. 155 (now s. 159) involving complainant T.R.; and three counts of sexual assault contrary to s. 271(1) (a) of the Criminal Code, R.S.C., 1985, c. C-46 , on complainants E.V.K., D.A.S., and J.C.H. The events which are the subject of the charges occurred on various dates between 1984 and 1991. The facts in this case are quite intricate and were set out in considerable detail in the trial judgment. A brief overview is provided below. I will discuss the facts in greater detail in my review of the trial judgment.
3 In every case the appellant held himself out as a photographer with connections to a modelling agency. In actual fact he had no such connections. Under this guise, he would interest the complainants, who ranged in age from 15 to 20, in the idea of having a portfolio of photographs taken with a view to initiating a modelling career. He persuaded all of the complainants to pose nude or semi-nude, and four of the complainants were photographed in bondage. In all but one of the cases he allegedly sexually assaulted the complainants while they were posing in various stages of undress. Some of them were assaulted when they were tied up and completely vulnerable. In the cases of P.V.B. and C.D., it was alleged that the appellant threatened either to send some of the more revealing photographs to their parents or to a pornographic magazine if they did not agree to perform sexual favours for him. While C.D. ignored the appellant’s threats, P.V.B. acceded to them and performed sexual favours over the course of a two- to three-month period in exchange for the negatives of the impugned photographs.
4 The appellant was convicted of sexual assault on E.V.K., D.A.S., T.R. and of extortion and sexual assault in the cases of P.V.B. and C.D. He was acquitted of the charges of sexual assault relating to C.B. and J.C.H., and of the charge of buggery involving T.R. He was sentenced to a total of nine years imprisonment. This was later reduced to seven years by the Newfoundland Court of Appeal.
5 The majority of the Court of Appeal dismissed the appellant’s appeals against the convictions. O’Neill J.A., dissenting, would have allowed the appeals and ordered a new trial on the counts of sexual assault involving E.V.K., D.A.S., T.R. and C.D. He would have acquitted the appellant on the count of sexual assault involving P.V.B. and on the counts of extortion involving P.V.B. and C.D.
II. Relevant Statutory Provisions
6 The relevant section of the Criminal Code at the time of the events was as follows:
305. (1) Every one who, without reasonable justification or excuse and with intent to extort or gain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done, is guilty of an indictable offence and is liable to imprisonment for fourteen years.
III. Judicial History
A. Supreme Court of Newfoundland, Trial Division, [1993] N.J. No. 143 (QL)
7 Easton J. addressed two issues at trial that are not before this Court on appeal. The first was whether the Crown fulfilled its obligation of timely disclosure in respect of its intention to call expert evidence regarding post traumatic stress syndrome in sexual assault cases, as well as expert toxicological evidence. The second was whether similar fact evidence should have been introduced at trial. He found that the Crown made adequate disclosure. He would also have admitted similar fact evidence, but limited its use to the modus operandi used by the appellant and as a tool in the assessment of the credibility of all witnesses.
8 After cautioning himself as to the proper application of the presumption of innocence in a case with a large number of complainants and a total of 10 charges, he then turned to an assessment of the evidence presented by each complainant and the appellant on each count. I will not review the evidence pertaining to the complainant C.B. The appellant was acquitted of sexually assaulting her and his acquittal is not in issue in this appeal.
(1) P.V.B.
9 P.V.B., who was 15-16 years old at the time of the events in question, came to know the appellant through the motorcycle federation of which he was the chairman. The complainant went to the appellant’s residence in the early spring of 1985 for several photo sessions. After some coaxing, nude photographs were taken. She testified that she kept asking the appellant about the photographs but he refused to show them to her. She finally refused to pose for any more photographs and insisted that he give her the negatives. The appellant told her that if she wanted the negatives she would have to perform sexual favours for him, and if she refused, he would send the photographs to her mother.
10 The complainant explained that because of her fear that she would be, in her words, “exposed”, she agreed to his terms. Her evidence was that for the next two to three months she would regularly go to the appellant’s apartment to have sexual intercourse with him. During these visits she was subjected to bondage and whipping, and had vibrators and dildos inserted in her vagina. At the end of each session, she received a strip of negatives. She collected them all and burned them. A friend of P.V.B.’s and her boyfriend of the time confirmed that they were aware of the “arrangement” she had with the appellant, and the friend saw P.V.B. destroy some of the negatives.
11 The appellant’s claim was that any sexual activity between the complainant and himself was consensual and that the photography sessions only began after they had been involved in a sexual relationship for some time. As a result, he would have had no reason to threaten to expose the complainant, and he never did so.
12 Easton J. accepted P.V.B.’s evidence, and convicted the appellant of sexual assault contrary to s. 246.1(1)(a), and extortion contrary to s. 305(1).
(2) C.D.
13 C.D. met the appellant at a local mall during the summer of 1984. She was 19 years old at the time. Photographs were eventually taken at C.D.’s parents’ home. A second session was later arranged in the basement of her apartment building. A friend of hers was present at this second photo session. At one point during the shoot, she asked her friend to go and check on her daughter who was upstairs with a third person. While her friend was away, the appellant asked her to take off her clothes. She refused, and he became angry and said that she was wasting his time. After some persuasion, she took off her top. He then grabbed her breasts with his hands, squeezed them, and made lewd comments. The complainant testified that she was shocked and did not know what to do. The appellant then slid his hand inside her bikini bottom and onto her vagina. C.D. claimed she became very upset and got up just as her friend returned from checking on her daughter. The appellant packed up his photographic equipment and left.
14 C.D. testified that he later returned to her apartment and brought the photographs with him. She told him they were disgusting. He replied that she would have to pay for them if she wanted them back. A figure was mentioned but she did not have the money. The appellant then told her that if she went to bed with him, she would not have to pay. He also threatened to publish the photographs in a pornographic magazine and to put others in her father's mailbox if she did not have sex with him although he did not, in the end, carry out his threats.
15 The appellant admitted taking photographs of the complainant, but denied that any semi-nude photos were taken or that any sexual impropriety had occurred. He also denied trying to extort sexual favours from her, as there were no photographs with which to threaten her.
16 Easton J. accepted the complainant’s evidence and convicted the appellant of sexual assault contrary to s. 246.1(1)(a) and of extortion contrary to s. 305(1).
(3) E.V.K.
17 E.V.K., who was approximately 20 years old at the time of the alleged assault, met the appellant near the Fraser Mall in August 1990. The appellant approached her and asked if she would consider modelling. She expressed interest, and later attended his apartment on several occasions for photo sessions. At her last photo session, the appellant convinced her to pose nude and tied her wrists with ropes to hooks in an archway in his apartment. While she was tied up, he came up behind her, touched her breasts, and fondled and inserted a finger in her vagina. She asked him: "[D]o you have to do that?" and he said: "No." He then untied her, brought over a chair, and proceeded to tie her to the chair. He again fondled her breasts and vagina. According to her evidence she saw his reflection in the glass of the stereo and watched him undo his pants. She asked him to untie her. He did, but not before touching her vagina with his penis.
18 The accused confirmed the two incidents in his testimony but claimed they were consensual. Easton J. disagreed, and convicted him of sexual assault contrary to s. 271(1) (a).
(4) T.R.
19 T.R., who was 19 years old at the time of the assault, was approached by the appellant in the spring of 1986. She posed for semi-nude photographs at his apartment. A couple of weeks later, she returned to his apartment. Photographs were taken and some wine was consumed. The appellant suggested some bondage shots, and she agreed. He tied her wrists to each side of the archway, and while he was behind her, he moved her clothes aside and had intercourse with her from behind. She said she tried to stop him when he tried to put his penis in her vagina, but he did not until he ejaculated. She was very upset and he untied her. According to her testimony, they had more wine and he assured her that nothing of that nature would ever happen again. She later posed over a blanket on a coffee table. The appellant coaxed her into being tied to the table. She was fairly drunk at the time. He took some more photographs of her, then sodomized her. Afterwards, he untied her and she gathered her belongings and left. She later came back to his apartment to see some of the photographs, but there was no sexual contact, nor were any photographs taken.
20 The evidence of the appellant was considerably different than that of the complainant. He testified that he had a sexual relationship with T.R. prior to the events in question. He also claimed that the two incidents T.R. complained of – intercourse and anal intercourse – did not occur on the same night. He admitted that he had intercourse with the complainant while she was tied up, but that it was wholly consensual and that they had later gone into the bedroom to continue having sex. The anal intercourse took place on another occasion. It was his evidence that T.R. had discussed the idea with him. She then performed oral sex on him until he became aroused and he reciprocated before anally penetrating her with her consent. The appellant also described another consensual sexual encounter following the alleged offences when the complainant came over to look at photographs.
21 Easton J. convicted the appellant of sexual assault contrary to s. 246.1(1)(a). Although he wasn’t sure whether the anal intercourse occurred on the same night as the sexual assault, even if the complainant’s evidence that it occurred on the same night was accepted, he had grave doubts about her credibility vis-à-vis this second episode. He found it surprising that the complainant would allow herself to be put in an even more vulnerable and compromising position following a sexual assault. Accordingly, he was not convinced that the anal sex was not consensual and he acquitted the appellant of buggery.
(5) D.A.S. and J.C.H.
22 The sexual assault on D.A.S. allegedly occurred on the night of August 4, 1991. D.A.S., who was 15 years old at the time, went to Davis’s apartment with her friend J.C.H., who had previously posed for photographs with the appellant. After a discussion about modelling, D.A.S. signed a consent form. She was then asked to stay in the bedroom for about half an hour while photographs were taken of J.C.H. D.A.S. then remembers being photographed as she was tied to the archway, and said that the appellant tried to take the straps off her bathing suit and touched her breasts and pinched her nipples "to make them hard". D.A.S. told him to leave her alone, and he untied her. This was the only allegation of sexual assault she made. The next thing she remembered was J.C.H. phoning for a ride and leaving the appellant’s apartment.
23 D.A.S.’s recollection of the events was sketchy, and there was a period of about one and one‑half hours for which she could not account. She could not remember how she got tied up, and did not know if she consented to sexual activity with the appellant during that time frame.
24 J.C.H., who was 17 years old, had previously been to the appellant’s apartment and posed nude for him. On August 4, while D.A.S. was in the bedroom, it was J.C.H.’s testimony that he tied her to a chair and inserted a dildo in her vagina without her consent. She said nothing because she was scared. She further alleged that the appellant had touched her breasts while she was tied to the archway. She also offered the following account of the sexual activities between the appellant and D.A.S.: the appellant tied D.A.S. to a chair and had J.C.H. perform oral sex on him. The appellant then inserted his penis in D.A.S., who was crying at the time, and ejaculated over her. They left shortly afterwards, after being picked up by J.C.H.’s former boyfriend. He confirmed that when he picked them up both J.C.H. and D.A.S. appeared upset, and that D.A.S. seemed to be annoyed with J.C.H.
25 The appellant claimed that he had slept with J.C.H. on one of her previous visits, and that any sexual activity that took place, including the incidents on the night of August 4, was purely consensual. It was his evidence that on the night in question J.C.H. was urging D.A.S. to pose for photographs, and that J.C.H. suggested D.A.S. be tied to the chair. Once tied up, J.C.H. inserted a vibrator into D.A.S. and motioned him over and gave him oral sex. He said that J.C.H. then took out the vibrator and that he had intercourse with D.A.S. while J.C.H. was urging him on. He ejaculated over D.A.S., then untied her. D.A.S. then said: "Get out, get me out of here", which the appellant said was in response to J.C.H.’s proposal of lesbian sex with her.
26 A video of J.C.H. that had been seized at the appellant’s residence was also shown to the court. It included a segment in which J.C.H., who was obviously a willing participant, was masturbating herself with a dildo. According to the appellant, the video had been made sometime after August 4, 1991. J.C.H. denied having any knowledge whatsoever of this video.
27 Easton J. found it extremely difficult to reconstruct the events of the night in question. D.A.S. did not remember many events and contradicted herself at times. In addition, there were numerous discrepancies between J.C.H.’s and D.A.S.’s testimony. Nevertheless, he found at paras. 95-97:
Here, even though we have the claimed lapse of memory; which I found suspect on the part of the complainant, this is not to say that she was not sexually assaulted. For many reasons she may not have told what I believe happened that evening at that residence. While her evidence about the pinching of her breasts may or may not have been true and was the only sexual assault which she asserted had occurred, nevertheless, I am not convinced that a sexual assault did not in fact take place.
... In my view, here there is other evidence, including that of the accused, which proves to me beyond a reasonable doubt that the accused did, in fact, commit a sexual assault upon the complainant without her consent.... [T]he accused admits that he had sex with the complainant.... He stated that the complainant, D.A.S. was very upset. It was his evidence that D.A.S.'s arms and legs had been tied and that D.A.S. was complaining while being tied to the chair.... D.A.S. said: "Get out, get out". While the accused tries to divert this comment more towards J.C.H. than himself, I am not convinced that it was not equally applicable to him.
I also accept the evidence of J.C.H. that at the time the accused inserted his penis in D.A.S., she was crying. I take this as a manifestation of lack of consent.
He convicted Davis of sexually assaulting D.A.S., contrary to s. 271(1) (a) of the Criminal Code .
28 Easton J. acquitted Davis of sexually assaulting J.C.H. The fact that she did not remember doing the video, in which she appeared to be a willing participant, along with the fact that similar memory losses were claimed by C.B. and D.A.S., who were all good friends, cast doubts on her credibility.
B. Newfoundland Court of Appeal (1998), 159 Nfld. & P.E.I.R. 273
(1) Green J.A. for the majority (Steele J.A. concurring)
29 The appellant challenged his convictions on a number of grounds. I will deal with each ground of appeal in the order disposed of by the majority of the Court of Appeal.
30 Green J.A. first dismissed the appellant’s arguments that the trial judge erred in holding that the Crown fulfilled its disclosure obligations and in admitting similar fact evidence. He then turned to consider more specific grounds of appeal relating to individual charges.
31 The appellant argued that the trial judge erred in a number of respects in convicting him of extortion in the cases of P.V.B. and C.D. His principal argument was that the word “anything” in s. 346(1) of the Criminal Code, R.S.C., 1985, c. C-46 (formerly 305(1)), was limited to things of a proprietary or pecuniary nature and therefore did not include sexual favours. Green J.A. rejected this argument. Relying on the case of R. v. Bird (1969), 9 C.R.N.S. 1 (B.C.C.A.), he held that the scope of the word “anything” extended to intangibles and included sexual favours. Acknowledging that the trial judge did not undertake a specific analysis of the law of extortion, he nevertheless found after a review of the record that the necessary elements of the offence were established. He therefore dismissed this ground of appeal.
32 The appellant argued that the trial judge erred in convicting him of sexual assault in the case of P.V.B. Although P.V.B. chose to have sexual intercourse with him as a result of his threatened exposure of nude photographs of her, the appellant submitted that a threat of this nature did not render her choice non-consensual. He argued that s. 265(3) (b) (formerly s. 244(3)(b)), which refers to threats of force, was exhaustive of the types of threats that vitiate consent. Green J.A. found that threatened exposure of nude photographs did not fall within the ambit of s. 265(3) . However, relying on R. v. Coughlan (1992), 100 Nfld. & P.E.I.R. 326 (Nfld. C.A.), and R. v. Caskenette (1993), 80 C.C.C. (3d) 439 (B.C.C.A.), he concluded that s. 265(3) was not exhaustive of the circumstances in which threats can vitiate consent. He also held that the appellant’s threat in this case was sufficiently coercive to vitiate the complainant’s consent. Accordingly, he dismissed this ground of appeal.
33 Green J.A. then considered the appellant’s argument that the principle against multiple convictions arising from the same delict articulated by this Court in Kienapple v. The Queen, [1975] 1 S.C.R. 729, should have precluded one of the two convictions on the charges related to P.V.B. He found that for the Kienapple principle to apply, there must be both a factual and legal nexus between the offences. In this case there was not a sufficient legal nexus between extortion and sexual assault, given the different societal interests the two offences sought to protect. He dismissed this ground of appeal.
34 The appellant argued that the trial judge erred in not considering whether there was an air of reality to the defence of honest but mistaken belief in consent in the case of E.V.K. Green J.A. held that the trial judge’s failure to advert to the defence in an otherwise detailed judgment raised the question of whether he failed to consider it. Another possibility was that the trial judge had decided the defence had no “air of reality” and therefore did not need to be addressed in his reasons. Finding it impossible to resolve this question from a review of the judgment, Green J.A. conducted a review of the evidence and concluded there was no air of reality to the defence, and therefore dismissed this ground of appeal.
35 Finally, Green J.A. addressed the appellant’s contention that the trial judge erred in his application of the principle of reasonable doubt in the cases of all five complainants. He noted that the trial judge made two problematic statements in the cases of D.A.S. and T.R. where, in reviewing the evidence, he said he was “not convinced” that the complainants consented to the sexual activity in question. Green J.A. found that the trial judge properly directed himself as to the presumption of innocence and the principle of reasonable doubt at the outset of his judgment. He concluded that the problematic remarks, when viewed in the context of the entire judgment, were effectively neutralized by other passages. Green J.A. also found that the verdicts were all reasonable and supported by the evidence.
(2) O’Neill J.A. in dissent
36 O’Neill J.A. would have acquitted the appellant on both counts of extortion. Adopting the views of A.W. Mewett and M. Manning (Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 833), he found that the word “anything” in the context of s. 346(1) could only refer to “something of some tangible proprietary or pecuniary nature”. Therefore, “anything” could not include sexual acts. With respect to the extortion of sexual favours from C.D., O’Neill J.A. found that the offence required that an actual attempt be made by the appellant. An attempt in law required something more than a statement of intention. There was no evidence of any further contact between the appellant and the complainant after the meeting in her apartment, nor was there evidence to show that anything was done by the appellant in furtherance of the threats. Accordingly, the charge should have been dismissed.
37 O’Neill J.A. would have acquitted the appellant of sexual assault in the case of P.V.B. Relying on R. v. Guerrero (1988), 64 C.R. (3d) 65 (Ont. C.A.), he found that s. 265(3) was exhaustive of the circumstances in which threats vitiate consent.
38 With respect to the appellant’s conviction of sexual assault in the case of E.V.K., O’Neill J.A. found that the trial judge was in error in not considering whether there was an air of reality to the defence of honest but mistaken belief in consent, and would have ordered a new trial.
39 Finally, O’Neill J.A. held that the trial judge erred in his application of the principle of reasonable doubt in the cases of all five complainants. He found that the trial judge made two notable errors. First, in each case the trial judge failed to consider all of the evidence in determining whether there was a reasonable doubt in the manner set out by this Court’s decision in R. v. W. (D.), [1991] 1 S.C.R. 742. Second, that in the cases of D.A.S. and T.R., the trial judge used language that suggests that he reversed the onus on the burden of proof from the Crown to the appellant. He would have ordered new trials on the charges of sexual assault in the cases of D.A.S., T.R., and C.D. O’Neill J.A. specifically did not dissent on the reasonableness of verdicts or whether they were supported by the evidence.
IV. Issues
40 This is an appeal as of right, and the issues on which this Court has jurisdiction are limited to questions of law on which O’Neill J.A. dissented. There are five issues:
1. Is it a crime to extort sexual favours?
2. Is there consent to sexual activity if it is obtained by threatened exposure of nude photographs?
3. Does the Kienapple principle apply to the convictions of extortion and sexual assault in the case of P.V.B.?
4. Did the trial judge err in failing to consider the defence of honest but mistaken belief in consent in convicting the appellant of sexually assaulting E.V.K.?
5. Did the trial judge err in his application of the principle of reasonable doubt in the cases of all five complainants?
V. Analysis
A. Is it a crime to extort sexual favours?
41 Is it a crime to extort sexual favours? The answer to this question depends on the scope of the word “anything” in the extortion provision of the Criminal Code . The appellant was charged under s. 305 , where extortion was defined as follows:
305. (1) Every one who, without reasonable justification or excuse and with intent to extort or gain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done, is guilty of an indictable offence and is liable to imprisonment for fourteen years.
Section 305(1) was slightly modified in 1985 (S.C. 1985, c. 19, s. 47). It is now s. 346(1) , which reads as follows:
346. (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
Both Green J.A. and O’Neill J.A. referred to s. 346(1) in their reasons. While ss. 305(1) and 346(1) are virtually identical, the words “with intent to extort or gain” precede the first reference to “anything” in s. 305, whereas the words “with intent to obtain” precede the first reference to “anything” in s. 346. Given this subtle difference and the fact that the appellant was charged and convicted under s. 305, I will refer to s. 305 in the course of my analysis.
42 In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, the Court adopted the following passage from Driedger’s Construction of Statutes (2nd ed. 1983) as the general approach to be taken to statutory construction:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
43 I begin with the grammatical and ordinary sense of “anything”. The Oxford English Dictionary (2nd ed. 1989), vol. 1, defines anything as follows: “A combination of ANY and THING, in the widest sense of the latter, with all the varieties of sense belonging to ANY.” The dictionary definition suggests a broad interpretation, which would include sexual favours. Such an interpretation is also supported by the immediate context of the provision. “Anything” is referred to three times in s. 305(1):
305. (1) Every one who, without reasonable justification or excuse and with intent to extort or gain anything, by threats, accusations, menaces or violence induces or attempts to induce any