R. v. Quashie (S.), (2005) 200 O.A.C. 65 (CA)

• Judge: Weiler, Goudge and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 16, 2005
• Jurisdiction: Ontario
• Citations: (2005), 200 O.A.C. 65 (CA)

R. v. Quashie (S.) (2005), 200 O.A.C. 65 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JN.086

Her Majesty The Queen (respondent) v. Seth Quashie (appellant)

(C40813)

Indexed As: R. v. Quashie (S.)

Ontario Court of Appeal

Weiler, Goudge and Gillese, JJ.A.

June 29, 2005.

Summary:

The accused was charged with two counts of aggravated sexual assault. A jury convicted him of the lesser and included offences of sexual assault and sexual assault causing bodily harm. The accused was sentenced to a total of five years incarceration: two years for the sexual assault and three years consecutive for the sexual assault causing bodily harm conviction. The accused appealed the convictions and sought leave to appeal against sentence.

The Ontario Court of Appeal dismissed the conviction appeals, granted leave to appeal against sentence and dismissed the sentence appeal.

Editor's note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent - A trial judge charged a jury that it need not consider the issue of consent with respect to the offence of aggravated sexual assault or sexual assault causing bodily harm as no one could consent to being wounded, maimed, disfigured or to have their life endangered - The Ontario Court of Appeal held that it was an error for the trial judge to fail to instruct the jury that in order for bodily harm to vitiate consent, they had to find both that the accused had intended to inflict bodily harm on the complainant and that the accused had caused her bodily harm - However, no substantial wrong or miscarriage of justice occurred - The jury clearly believed the complainant and found that she had not consented to the first incident - The jury also had to have concluded that the complainant was assaulted and suffered bodily harm (which was deliberately caused) in the second incident - See paragraphs 51 to 61.

Criminal Law - Topic 673

Sexual offences - Rape or sexual assault - Jury charge or directions - The accused was charged with two counts of aggravated sexual assault - A jury convicted him of the lesser and included offences of sexual assault and sexual assault causing bodily harm - The Ontario Court of Appeal set out the terms by which the trial judge should have charged the jury on the included offence of sexual assault causing bodily harm - See paragraph 58.

Criminal Law - Topic 673

Sexual offences - Rape or sexual assault - Jury charge or directions - [See Criminal Law - Topic 666 ].

Criminal Law - Topic 675

Sexual offences - Rape or sexual assault - Evidence and proof - [See Evidence - Topic 7154 ].

Criminal Law - Topic 4341.2

Procedure - Jury - Evidence - Leaving copies of transcripts, statements and exhibits with jury - In response to a jury's request and with the consent of counsel, a trial judge provided the jury with full transcripts of the evidence of the complainant and the appellant - Only those portions of the transcript that related to matters taking place in the absence of the jury were excluded - The accused appealed his convictions, arguing that the trial judge erred by leaving the transcripts with the jury - The Ontario Court of Appeal rejected the argument - The courts had already implicitly decided that it was acceptable to leave transcripts with the jury - The court stated that the "concern that the court or parties will not know what parts, if any, of the transcript were relied on by the jury is misplaced. The jury has with it a number of items during its deliberations. Because jury deliberations are confidential, it is not known what use is made of those items. For example, we do not know what parts of an exhibit, if any, a jury relied upon but that does not make it improper for the jury to have the exhibits during its deliberations." - See paragraphs 43 to 50.

Criminal Law - Topic 5834.2

Sentencing - Considerations - Effect on victim - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations - First offence - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - A jury convicted the accused (age 21) of sexual assault and sexual assault causing bodily harm - He was a first-time offender - He alleged consent - The victim was a 19 year old university student from Nigeria - The victim suffered physical and psychological harm - She had several genital tears, abrasions and serious bruising - She suffered from diarrhoea, headaches, nausea and vomiting for a month after the assaults because of the medication she took to prevent contracting HIV - She missed a month of work and school - She did poorly on her exams and lost her scholarship - She continued to worry that she might develop HIV, withdrew from friends and family and attempted suicide - She continued to suffer from depression, nightmares and insomnia - He was sentenced to a total of five years' incarceration: two years for the sexual assault and three years consecutive for the sexual assault causing bodily harm conviction - The trial judge found that the risk of re-offending was not insignificant - The accused appealed, arguing that the sentence was manifestly unfit, particularly because he was a first-time offender - The Ontario Court of Appeal dismissed the sentence appeal - While the global sentence might have been at the high end of the range, it was not outside the range - See paragraphs 81 to 89.

Criminal Law - Topic 5933

Sentence - Sexual assault causing bodily harm - [See Criminal Law - Topic 5932 ].

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - The accused was convicted by a jury of sexual assault and sexual assault causing bodily harm - The accused appealed, arguing that the evidence of a Crown expert in the area of sexual assault-related injuries, should have been ruled inadmissible by the trial judge because, inter alia, the issue of consent, upon which the expert opined, was for the jury to decide - The Ontario Court of Appeal rejected the argument - The expert did not opine on consent - She gave opinion evidence on the likelihood of whether the complainant's injuries were consistent with non-consensual sexual intercourse - It was clear from R. v. Liu (Ont. C.A.) that such evidence was admissible - See paragraphs 34 to 37.

Cases Noticed:

R. v. Liu (Y.), [2004] O.A.C. Uned. 508; 190 C.C.C.(3d) 233 (C.A.), refd to. [para. 36].

R. v. Lalande (A.) (1999), 124 O.A.C. 94; 138 C.C.C.(3d) 441 (C.A.), refd to. [para. 44].

R. v. Keegstra (J.), [1996] 1 S.C.R. 458; 197 N.R. 26; 184 A.R. 217; 122 W.A.C. 217, reving. (1994), 157 A.R. 1; 77 W.A.C. 1; 92 C.C.C.(3d) 505 (C.A.), refd to. [para. 46].

R. v. Ostrowski and Correia, [1990] 2 S.C.R. 82; 107 N.R. 230; 70 Man.R.(2d) 122, refd to. [para. 46].

R. v. Kiyoshk (K.) (1999), 118 O.A.C. 269; 133 C.C.C.(3d) 478 (C.A.), refd to. [para. 47].

R. v. G.B. (2004), 185 O.A.C. 175 (C.A.), refd to. [para. 47].

R. v. Thomas (1987), 20 B.C.L.R.(2d) 241 (C.A.), refd to. [para. 48].

R. v. Welch (J.) (1995), 86 O.A.C. 200; 101 C.C.C.(3d) 216 (C.A.), refd to. [para. 53].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 66 C.C.C.(3d) 454, refd to. [para. 53].

R. v. Amos (D.), [1998] O.A.C. Uned. 335 (C.A.), refd to. [para. 54].

R. v. Robinson (J.R.) (2001), 143 O.A.C. 80; 153 C.C.C.(3d) 398 (C.A.), refd to. [para. 55].

R. v. Paice (C.D.J.) (2005), 332 N.R. 159; 262 Sask.R. 171; 347 W.A.C. 171; 2005 SCC 22, refd to. [para. 56].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1, refd to. [para. 79].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 81].

R. v. Priest (J.) (1996), 93 O.A.C. 163; 110 C.C.C.(3d) 289 (C.A.), refd to. [para. 82].

Counsel:

Diane Magas, for the appellant;

Leslie Paine, for the respondent.

This appeal was heard on February 16, 2005, by Weiler, Goudge and Gillese, JJ.A., of the Ontario Court of Appeal. Gillese, J.A., delivered the following judgment for the court which was released on June 29, 2005.