R. v. S.L.C., 2011 NLCA 19

Date: 20110221 Docket: 09/28 Citation: R. v. S.L.C. , 2011 NLCA 19

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : S.L.C. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L., Barry and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 2008 05T 0160 Appeal Heard: October 18, 2010 Judgment Rendered: February 21, 2011 Reasons for Judgment by Green, C.J.N.L. Concurred in by Barry and Hoegg, JJ.A.

Counsel for the Appellant: Raymond Kuszelewski Counsel for the Respondent: Stephen R. Dawson Green, C.J.N.L.: [ 1 ] This appeal engages the question as to whether an acquittal on a charge of sexual assault and a conviction on a charge of sexual exploitation on the same factual allegations are necessarily inconsistent, thereby justifying an acquittal on the sexual exploitation charge as well.

[ 2 ] Although opposing the appellant’s argument that the verdicts were inconsistent and cannot stand, counsel for the Crown agrees that the appeal should be allowed for other reasons and submits that a new trial should be ordered on the sexual exploitation charge. Counsel argues that there were a number of errors committed in the trial judge’s charge to the jury which, taken cumulatively, render the verdict unsafe. [ 3 ] The acquittal on the sexual assault charge has not been appealed.

While the sexual assault charge itself is not therefore before this Court, some discussion of that charge is nevertheless necessary in the context of its interrelationship with the sexual exploitation charge. Background [ 4 ] The appellant was charged with sexual assault of a developmentally delayed girl, contrary to s. 271(1) of the Criminal Code . The complainant was aged 13 and 14 at the relevant time. The appellant was the common law spouse of the girl’s mother.

The appellant was also charged with sexual exploitation (being in a position of trust or authority towards the complainant and touching her for a sexual purpose), contrary to s. 153(1) (

a) of the Criminal Code. [ 5 ] The complainant’s evidence was given in a compendious fashion without describing individual incidents. In essence, she said that the appellant assaulted her “every night” at her home when her mother was at work by touching her “in the vagina and my mouth and my bum”. She also said he touched her with his hands and his stomach and his penis. Her generic description of these activities makes it clear that she was alleging vaginal intercourse and oral sex.

She did not allege that different types of sexual activities occurred on different occasions. [ 6 ] She also did not allege any specific times when the incidents occurred except to say they occurred when she was “ten or eleven or twelve”; that they stopped when she was “about thirteen”; and that the last incident occurred shortly before Hallowe’en in 2007.

Neither counsel on the appeal disputed that that last incident would have occurred, if it did occur, after the complainant’s fourteenth birthday. [ 7 ] Each count on the indictment alleged that the activity occurred during the same time frame, i.e. between January 18, 2007 and October 30, 2007. The complainant’s fourteenth birthday occurred on October 5, 2007. This date is important for a number of reasons. [ 8 ] In the first place, the offence of sexual exploitation could not, as a matter of law, have occurred before the complainant’s fourteenth birthday.

At the time when the offences were alleged to have occurred, s. 153(2) defined a “young person” – against whom the offence of touching for a sexual purpose must have been committed – as a person “fourteen years of age or more but under the age of eighteen years”: R.S.C. 1985, c. 19 (3rd Supp.), s. 1 (s. 153(2) was not amended until S.C. 2008, c. 6, s. 54(c)). [ 9 ] Secondly, at the time when the offence was alleged to have been committed, consent was not, as a matter of law, a defence to a charge of sexual assault where the victim was “under the age of fourteen years”: s. 150.1(1): R.S.C. 1985, c. 19 (3rd Supp.), s. 1.

Although there were a number of exceptions to this rule, none of the exceptions have any application in this case. [ 10 ] Thirdly, s. 150.1 (1) also provides that consent is not a defence to a charge of sexual exploitation. Again, none of the exceptions to this rule apply in the circumstances of this case. [ 11 ] The result of the occurrence of the complainant’s birthday in the midst of the time frame alleged for the commission of the two offences, as stated in the indictment, was that: (

i) a conviction for touching for a sexual purpose could only be based on events which occurred on or after October 5, 2007; (ii) a conviction for sexual assault based on events occurring before October 5, 2007 could occur even if there was a reasonable doubt as to whether the complainant consented; and (iii) a conviction for sexual assault based on events occurring on or after October 5, 2007 could only be sustained if there was no reasonable doubt as to whether the complainant consented. [ 12 ] Regrettably, the trial judge did not draw these distinctions to the attention of the jury.

He erroneously told them that the complainant was a young person within the definition in the Criminal Code for the whole of the period set out in the indictment. As well, he did not charge them at all on consent as an element of the offence of sexual assault. There is only one mention of consent in his original charge but that was in relation to his discussion of the elements of the s. 153 offence.

He erred in mentioning it in that context because consent is not available as a defence in relation to the offence of touching for a sexual purpose: s. 150.1(1). [ 13 ] On the issue of consent, the complainant’s evidence was that she did not consent. She was clear on this point. She testified that “He’d pin me down that I wouldn’t move” and that “I told him to stop and he wouldn’t stop”. When asked what happened after she told the appellant that she had a pain in her stomach following the insertion of his penis in her vagina, she said: “He would not stop until I got mad at him”.

When asked what she would say to him, she answered: “said to him not to touch me…” [ 14 ] Counsel for the appellant did not challenge the complainant’s evidence regarding consent and there was no suggestion given by the appellant when he testified that there may have been a consensual or even inadvertent touching. His position was that the events did not happen at all. [ 15 ] At the conclusion of the judge’s charge to the jury, counsel for the Crown asked that the jury be recharged on the meaning of sexual assault.

She expressed the concern that the judge had indicated that for an assault to be established there had to be the application of force. She wanted the jury to understand that any touching in the absence of consent would be sufficient.

She also pointed out that the complainant would have been incapable of consenting in law with respect to any assaults that occurred before her fourteenth birthday. [ 16 ] The judge recalled the jury and instructed them as follows: In this case, in a sexual assault there’s no requirement for force to be involved with the charge. … So it’s just touching of a sexual nature, is the ingredients of the offence. It usually goes on to say without the consent of the individual. We’re not being - Consent in this trial is not an issue because of the age of the individual. So we haven’t given you any instruction on that….

There’s no requirement for there to

be force and consent is not an issue . (Emphasis added) [ 17 ] Subsequent to the charge and recharge, the jury asked for clarification on the differences between the two offences the appellant was facing. In describing the sexual assault offence, the judge stated: … the charge that deals with an allegation of a sexual assault. So the nature of the count and the nature of that offence, as it’s worded relative to this case, would be that it’s alleged that [the accused], without the consent of [the complainant], applied force intentionally to [the complainant], directly or indirectly, which was of a sexual nature.

And we know that consent is not an issue in this case , because, again, of the age. So we’ve removed that issue . But we’re not talking again about a person in position of authority or trust. We talked about that as the previous charge. We’re not talking about a young person. It can be any age. But the issue would be and the charge is that [the accused] committed a sexual assault on [the complainant]. He touched her in a sexual manner. Those are the basic elements. Consent is not an issue.

We’ve gone through that a number of times . (Emphasis added) [ 18 ] At no time during the original charge, recharge or clarification did the judge indicate that consent could still have been an issue on the sexual assault charge with respect to any events that happened after the complainant’s fourteenth birthday. The Verdicts [ 19 ] When the jury came back to announce its verdicts on the two counts, in response to the clerk’s question as to their verdict on the first count (sexual exploitation), the foreperson stated: “We were unable to reach a decision”.

The clerk proceeded immediately to ask for the verdict on the second count (sexual assault) and the answer given was “Not guilty”. [ 20 ] The judge then exhorted the jury to continue to deliberate to see if they could come to a unanimous conclusion on the first count and sent them back to the jury room. [ 21 ] The jury subsequently asked for clarification on the question as to whether, in view of the fact that the indictment specifically alleged that the touching of the complainant was with the appellant’s penis, they could convict if the touching had, instead, been with another part of the appellant’s body.

The judge told them that the reference to the appellant’s penis was mere surplusage and that “if there was a sexual touching, it does not have to be with his penis … for the charge to have been made out…” [ 22 ] Before the jury returned with its verdict on the first count, counsel for the appellant made a motion that, in view of the fact that the jury had acquitted on the charge of sexual assault, the court should now direct a verdict of not guilty on the first charge as well.

He submitted that inasmuch as sexual assault is a general intent offence (requiring only an intent to touch in circumstances of a sexual nature) but sexual exploitation is a specific intent offence (touching for a sexual purpose), a verdict of not guilty on the general intent offence for the whole of the period covered by the indictment (the same for both counts) necessarily carried with it a conclusion that the intent was lacking for the other offence as well.

If the appellant did not have the intent to touch, he could not have had an intent to touch for a sexual purpose. [ 23 ] Counsel for the appellant also submitted that the acquittal on the sexual assault charge meant that “This jury has said there were no touchings”.

If there was no touching for the whole of the period covered by the indictment, it follows that there could not be touching with the superadded requirement of touching for a sexual purpose. [ 24 ] Counsel for the Crown pointed out, on the other hand, that the two offences required different elements to be proved and that the complainant had alleged a series of incidents which took place over a period of months.

She emphasized that the court did not know why the jury acquitted the appellant of sexual assault and that one could not necessarily say that it was because of a finding that no touching occurred. [ 25 ] The trial judge rejected the arguments of counsel for the appellant. He reasoned: There were two offences. We do know in the indictment that they arise, that they allegedly arose during the same period of time, but the evidence we heard was a series of allegations that were historical over a period of time and some of them during the period of time within the Indictment.

So there’s not a single fact or single assault that’s, that’s the subject matter of the evidence. … I have no consideration as to what the facts the jury may be holding as being relevant and what facts apply to each one of the two cases. … In this case, the jury may convict on either one, or could’ve on the instructions, if they were properly instructed by me, they could’ve convicted on either one, they didn’t have to, to convict on both or either one in particular.

So … I think it would be premature now for me and almost peremptory to pull the case from the jury. … I don’t think it’s for me to go into their mind and decide or try to interfere on what facts they’re relying on to try the accused on this charge…. I think to do that would be premature. I’d be interfering with the, the workings of the jury. I do recognize that the two offences have different measures or thresholds of intent that need to be proven. Obviously, the general intent of the second count is merely that the individual intended to perform the act.

In the first count the jury has to find that the individual performed the act, but also intended the purpose behind it to be of a sexual nature. So there’s certainly … the argument that because they found no general intent, can they find specific intent, but that’s again, the decision, I think, that the jury has to make and the, if they were properly instructed, there’s evidence before them, which they could convict. I’m prepared in this case to leave this matter to the jury. [ 26 ] It is this ruling that is the central focus of the appeal.

The Appeal - Issues [ 27 ] The thrust of the appellant’s argument is that the two verdicts are inconsistent, cannot be reconciled on any rational basis and

are therefore unreasonable. The evidence, counsel says, was presented in such a way that it did not allow for segregation into discreteevents that could support a conviction for one charge while at the same time allowing an acquittal on the other. In other words, theevidence related to the sexual exploitation charge was too wound up with the evidence related to the sexual assault charge (in fact it wasthe same evidence) as to be logically severable.

Counsel for the appellant submitted that the trial judge erred in not, in thesecircumstances, withdrawing the count of sexual exploitation from the jury and not directing that an acquittal be entered. [28] In his notice of appeal, the appellant also listed the following additional grounds of appeal: • The charge to the jury was incomplete and lacking in specific direction; • The incompleteness of the charge was not rectified with subsequent additions to the charge; • The jury was allowed to deliberate too long in one sitting (until 1:30 A.M.) after returning a verdict of not guilty to one charge andfailing to arrive at a verdict on the other charge [29] Argument on these grounds was not included in the appellant’s factum, nor were they addressed at the appeal hearing.

Theallegation that the charge to the jury was incomplete is, nevertheless, relevant to concerns that have also been raised by the Crown aboutthe charge to the jury. [30] Although the Crown joins issue with the appellant’s submission that the verdicts are inconsistent and unreasonable, andalthough the Crown has not appealed the acquittal on the sexual assault charge, it nevertheless submits that “the interests of justicerequire” the Court to examine certain aspects of the trial judge’s instructions to the jury, in particular, whether the judge properlyinstructed the jury on: • the issue of consent; • the burden of proof; and • the particularization of the sexual exploitation count, i.e. whether the touching had to be with the penis, as stated in the indictment,or whether it could be with any part of the body. [31] Crown counsel acknowledges that the judge’s instructions on these issues were deficient and submits that the cumulative effectof those errors has resulted in an unsafe conviction, requiring a new trial. [32] It will be seen that in view of my conclusion on the issue of inconsistent verdicts, it will not be necessary to conduct anyextensive analysis of these other issues.

Considerations (

a) The Law [33] This Court’s power to set aside a verdict of guilt on the ground that it is inconsistent is found in s. 686(1)(a) (

i) of the CriminalCode: R. v. Pittiman, 2006 SCC 9 , [2006] 1 S.C.R. 381, per Charron J. at paragraph 6. That provision authorizes the Court toallow an appeal against conviction where the Court is of the opinion that “the verdict should be set aside on the ground that it isunreasonable…” [34] In Pittiman, Charron J., for the Court, described the test to be applied, and the approach to be taken, as follows: [6] … before an appellate court may interfere with a verdict on the ground that it is inconsistent, the court must find that the verdict isunreasonable.

The appellant bears the onus to show that no reasonable jury whose members had applied their minds to the evidencecould have arrived at that conclusion … [7] The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meetbecause the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. The jury is entitled to accept orreject some, all or none of any witness’s testimony. Indeed, individual members of the jury need not take the same view of the evidenceso long as the ultimate verdict is unanimous.

Similarly, the jury is not bound by the theories advanced by either the Crown or thedefence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions givenby the trial judge. Martin J.A. aptly described the nature of the inquiry in R. v. McShannock (1980), (ON CA), 55C.C.C. (2d) 53 (Ont.

C.A.), at p. 56, as follows: Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of theverdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiablecompromise.

We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct anacquittal to be entered. [8] The search for a rational or logical basis for the verdicts does not mean that where a narrative of the events is not readily apparentfrom the jury’s findings that the impugned verdict must necessarily be set aside as unreasonable. The jury’s task is not to reconstructwhat happened. Rather, it is to determine whether the Crown has proven each and every element of the offence beyond a reasonabledoubt.

Therefore, in the case of a single accused charged with multiple offences, different verdicts may be reconcilable on the basis thatthe offences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses.The strength of the evidence relating to each count may not be the same, leaving the jury with a reasonable doubt on one count but not onthe other.

On the other hand, where the evidence on one count is so wound up with the evidence on the other that it is not logicallyseparable, inconsistent verdicts may be held to be unreasonable: e.g., see R. v. Tillekaratna (1998), (ON CA), 124C.C.C. (3d) 549 (Ont. C.A.)

… [10] As a practical matter, it will often prove to be more difficult for an appellant to meet the test in the case of multiple accused chargedwith the same offence, not because the test is different, but because there is often a wider scope for differing verdicts in the case ofmultiple accused. … The test remains the same in each case: are the verdicts irreconcilable such that no reasonable jury, properlyinstructed, could possibly have rendered them on the evidence? (Emphasis added) [35] The standard to be met before an appellate court can conclude that jury verdicts are inconsistent and therefore unreasonable isan extremely high one.

This must be so because of the faith that our legal system puts in the common sense of juries to assess theevidence and come to reasonable conclusions on that evidence. So long as the result is supportable on the evidence and the law, itmatters not that all jurors may not follow the same path of reasoning to get to a particular result or may not rely on the same theory of thecase or the same evidence: R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652.

An appellate court therefore ought not to intrudeinto the province of the jury unless, considering the law, the nature of the evidence and the judge’s instructions to the jury there can beno rational basis for the resulting verdict. (

b) Application of the Law to this Case [36] This is a case of a single accused facing two charges involving one complainant. Although it is alleged that there were anumber of events constituting the two charges that occurred over a nine month period, the fact is that the complainant’s evidence wasgiven in a global fashion, describing the nature of the acts generically and not relating them to specific times with the one exception thatthe last incident occurred shortly before Hallowe’en in 2007.

With that one exception, it is not possible to attribute any of the genericallydescribed acts to separate time frames within the total period covered by the two counts in the indictment. [37] In this sense, the case differs from this Court’s decision in R. v.

Bromley, 2004 NLCA 30 where the complainant alleged twoincidents occurring on different occasions, which led the Court to conclude that “the evidence respecting the two counts is logicallyseverable” (paragraph 18) and that it therefore could not be said that the differing verdicts could not be reconciled. [38] One would expect, therefore, that if the jury accepted the complainant’s evidence as to the occurrence of the events describedby her, especially as to the touching that was involved, there would have been a coincidence of result on both counts or at the very least,a guilty verdict on the sexual assault count where only a general intent to touch (as opposed to a specific intent of touching for a sexualpurpose in the other count) was required.

The events as described were not, in the words of Pittiman at paragraph 8, “temporally distinct,… qualitatively different, or dependent on the credibility of different complainants or witnesses”. [39] Crown counsel submitted, however, that it would have been possible for the jury to have convicted on the s. 153 charge (sexualexploitation) and not on the s. 271 charge (sexual assault) on the basis of conclusions that: (

a) touching for a sexual purpose occurredafter the complainant’s fourteenth birthday (the only time frame when, as a matter of law, the sexual exploitation offence could haveoccurred); and (

b) the touching was nevertheless consensual, thereby negativing any sexual assault (which required proof of lack ofconsent) but not negativing touching for a sexual purpose (for which, as a matter of law, consent was not a defence). [40] The corollary of this theory is that the jury would also had to have concluded that it had a reasonable doubt as to a sexualassault occurring before the complainant’s fourteenth birthday – because the jury acquitted on that count for the whole of the time periodalleged in the count.

Unlike the period occurring after the complainant’s fourteenth birthday, however, that acquittal could not have beenbased on a reasonable doubt as to consent because, for the pre-birthday period, consent was not, as a matter of law, a defence to thecharge. On the Crown’s theory, therefore, the acquittal on the sexual assault charge would have to have had different bases for the pre-and post-birthday periods – presumably, absence of touching in the pre-birthday period and reasonable doubt as to consent in the post-birthday period.

This seems to be an unlikely form of reasoning on the record in this case, where the evidence as to the eventsconstituting both counts was given globally and was all bound up together without any reference, (except to Hallowe’en), to specifictimes within the nine-month charge period.

One would think that if the jury were not satisfied as to the credibility of the complainant asto what she described, that assessment would apply equally throughout the charge period for both counts and lead to consistent results. [41] The one piece of the complainant’s evidence that might be a possible basis for differentiating between the jury’s approach inthe pre- and post- birthday periods is her assertion that the last incident occurred shortly before Hallowe’en in 2007.

It is theoreticallypossible that the jury concluded that the generalized description of the incidents, without any temporal underpinning, was too vague tosupport a conviction on either count (i.e., there was a reasonable doubt as to whether any touching occurred) except in respect of the lastincident that was alleged to have occurred shortly before Hallowe’en.

The jury could have reasoned that because – unlike any otherpossible incident during the charge period – this “Hallowe’en event” was connected to a specific time, it was proven beyond a reasonabledoubt that at least one touching occurred, and because it occurred after the complainant’s fourteenth birthday, it could support the s.153(1) charge. [42] However, certain other difficulties still remain with this possible reconciliation of the verdicts.

In the first place, it presupposesthat the jury was alert to the significance of the complainant’s fourteenth birthday and analyzed the evidence differently in relation to thatdate. The trial judge did not, however, draw this distinction to the attention of the jury. They would not, therefore, have had any basis fordividing their analysis into pre- and post- birthday periods.

While in theory they still could have done so, it is not reasonable to assumethat the jury could have made those distinctions in the absence of instructions from the trial judge. [43] More importantly, the theory being advanced by the Crown to explain the verdicts is based on the idea that the jury could haveacquitted on the sexual assault charge on the same events they relied on to convict on the sexual exploitation charge, by concluding thatthe touching was consensual.

The fatal flaw in this theory is that the trial judge specifically instructed the jury in his recharge and also inhis subsequent clarification in response to the jury’s questions that consent was not an issue in the trial. He said it twice during therecharge and three times during the clarification. He went so far as to say in his clarification, to drive the point home, that “we’veremoved that issue … We’ve gone through that a number of times”.

[44] With the jury having been told in no uncertain terms that consent was not to be considered, it is not reasonable to conclude thatthey would have decided the case by finding that a reasonable doubt as to consent negatived a conviction for sexual assault. This isespecially so in this case where consent was not specifically put in issue by the defence and the jury had not been provided by the trialjudge with extracts from the Criminal Code (especially ss. 265 and 271) describing the elements of sexual assault to assist them in theirdeliberations.

The specific instruction that consent was not an issue was therefore bolstered by the absence of any raising of the issue bythe defence on the evidence and by the absence of any independent means whereby the jury could have made its own determination thatabsence of consent was in fact an element to be considered. [45] While it is true that absence of consent as an element of sexual assault is always an element of the offence (unless the ageexceptions mentioned earlier apply) and, in principle, must always be satisfied on the requisite standard of proof by the trier of fact, itcannot be safely assumed in a case such as this – where the jury is told not to consider the issue – that they disregarded the judge’sinstructions and nevertheless considered the issue.

The jury is required to accept the instructions by the judge on matters of law: R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30. Indeed, the theory underlying appellate review of jury instructions is based onthe idea that a jury will follow their instructions and that if they are wrongly instructed in a material matter, the resulting verdict will beunsafe. See R. v. Archer (2005), (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), per Doherty J.A. at paragraph 48. [46] The matter has clearly been complicated by the erroneous instructions that were given to the jury.

If the jury had been properlyinstructed, there would be the possibility, as was the case in R. v. F.J. (2006), (ON CA), 210 C.C.C. (3d) 405(Ont.C.A.), that they could have decided to acquit with respect to the sexual assault count on the basis that absence of consent had notbeen proven beyond a reasonable doubt; however, because they were wrongly instructed that consent was not an issue, and there is noother realistic basis for concluding that the jury might nevertheless have considered the consent issue, it must be concluded that consentwas not the basis of the acquittal.

To repeat the words of Pittiman: [7] … The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given bythe trial judge. … [47] Here, given the acquittal on the sexual assault count, a verdict which has not been challenged on appeal, the verdict of guilt onthe sexual exploitation count is not supportable on any theory of the evidence “consistent with the instructions (though, in this case,erroneous) of the trial judge.” [48] There being no other basis for reconciling the verdicts, I conclude that, in the unusual circumstances of this case, the verdictsare inconsistent and therefore unreasonable within s. 686(1)(a)(

i) of the Code. (

c) Acquittal or New Trial? [49] It remains to consider whether the remedy in this case should be an acquittal on the sexual exploitation charge or a new trial. Innormal circumstances, where a verdict of guilt is found to be inconsistent with a not guilty verdict on another charge that is not beingchallenged on appeal, the remedy should be the entry of an acquittal with respect to the inconsistent verdict.

This is because the acquittalverdict, not having been appealed, is presumed to be correct and if the other verdict, judged against this standard, cannot be reconciledwith it as a matter of law, logic and common sense, it must necessarily be regarded as unreasonable. [50] This theory presupposes, however, that the verdicts are irreconcilable because “no reasonable jury, properly instructed, couldpossibly have rendered them on the evidence” (Pittiman, paragraph 10) [my emphasis]. [51] In this case, if the jury had been properly instructed, it would have been theoretically possible that the jury could neverthelesshave determined that absence of consent had not been proven beyond a reasonable doubt.

In light of the complicating factor of theerroneous jury instruction, therefore, the appropriate remedy here is to order a new trial. Although the existing verdict is unsafe becauseof the misdirection of the jury, the Crown ought to have the opportunity to have the matter considered in the light of a proper instructionto the jury. (

d) Other Grounds of Appeal [52] The Crown supported the appellant’s appeal on the basis that the judge’s instructions to the jury were deficient and therebyrendered the conviction for sexual exploitation unsafe. It is obvious from what has already been written that I agree with the Crown onthe instruction on the issue of consent. In view of the conclusions I have reached, it is not necessary to express an opinion on the otherpoints made by Crown counsel in his factum. Conclusion and Disposition [53] The trial judge erred in the manner in which he instructed the jury.

In light of this erroneous instruction in the context of theevidence as it unfolded, the verdict of guilt on the sexual exploitation count was inconsistent with the acquittal on the sexual assaultcount. It was therefore unreasonable and the conviction must be quashed. I would order a new trial on the sexual exploitation chargepursuant to s. 686(2)(

b) of the Code. J. D. Green, C.J.N.L.

I concur: L. D. Barry, J.A. I concur: L. R. Hoegg, J.A.