In R. v. JORGGE, 2013 ONCA 485, July 18, 2013, the accused was convicted of the offences of sexual assault and administering a stupefying substance with intent to commit a sexual assault.  At his trial, after a voir dire, a statement the accused had given to the police was admitted as evidence. In this statement, the accused initially indicated that a consensual act of sexual intercourse has taken place.  He subsequently indicated that the complainant may have been asleep when this occurred.  The complainant testified that she had felt “paralyzed” and 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.” The accused testified and indicated that he had lied to the police in relation to his latter comments.

The trial judge, in her reasons for convicting, said that she “unhesitatingly” accepted the evidence of the complainant. As regards the evidence provided by the accused, the trial judge relied on the accused having heard the arguments of counsel on the voir dire before testifying at trial:

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.

Later in her reasons the trial judge referred to the accused having “tailored” his evidence to “fit” the arguments of counsel.  The trial judge concluded that the accused’s statement to the police was truthful and that his trial evidence, given after hearing counsel’s 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. Jorgge’s evidence at this trial.

The accused appealed from the convictions and one of the grounds of appeal raised alleged that the trial judge erred in finding his evidence not to be credible on the basis that he had “tailored” his trial testimony to “fit” the arguments raised on the voir dire into the admissibility of his statement to the police.

 

The Ontario Court of Appeal held that the trial judge’s “reasoning was improper because it subverted the appellant’s right to be present at his trial.”  The Court of Appeal concluded that the “trial judge was entitled to consider the inconsistencies between the appellant’s statement to the police and his testimony at trial”, but she “was not…entitled to attribute those inconsistencies to his presence at the voir dire.”