Mazza v. R., [1978] 2 SCR 907

Supreme Court of Canada

Mazza v. R., [1978] 2 S.C.R. 907

Date: 1978-05-16

Vincent Mazza (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1978: May 2; 1978: May 16.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Trial—Joint trial for rape—Evidence—Charge to jury—Successive acts of intercourse by each accused—Defence of consent—Duty to deal with issues of fact relating to each accused separately—Facts relating to consent “interwoven”—Whether bribe attempt by one accused corroborative as against the other—Applicability of s. 21 of the Criminal Code—Criminal Code, ss. 21, 613(1)(b)(iii), 623(1).

M and a co-accused R were convicted of raping the same woman who was on the evidence also raped by a third person. The convictions were affirmed by the Court of Appeal, that of R unanimously and that of M by a majority. The main issue at trial had been that of consent or want of consent of the complainant to the intercourse and other sexual acts which, admittedly, were performed by the two accused and the third person. M’s further appeal to this Court was based on the dissent of Dubin J.A. in the Court of Appeal to the effect that the trial judge had erred (first) in failing to deal separately with the issues of fact and law which related to the guilt or innocence of M as distinguished from R, (second) in failing to instruct the jury that they could acquit M if they found R guilty and (third) in failing to instruct the jury as to the meaning and effect of s. 21 of the Criminal Code if they were to consider the threats and acts of violence by R as relevant to the guilt or innocence of M.

Leave was given to appeal also on two additional grounds of alleged error by the trial judge, (first) in failing to instruct the jury that they must be satisfied beyond a reasonable doubt that M was aware that the complainant was not consenting or that if she were consenting, she was doing so by reason of a consent extorted by threats or by fear of bodily harm and (second) in failing to instruct the jury that evidence of an attempt to suppress evidence could only be cor-

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roborative of the complainant’s evidence with respect to M if the attempt was authorized or procured by M.

Held: The appeal should be dismissed.

The fact that, in the view of the jury, M lied in asserting consent by the complainant should not, ipso facto, deprive him of a right to have the jury properly charged on all the issues for which there is some evidentiary basis. In the present case however the facts, e.q. M’s presence when R threw the complainant onto a mattress in the room where the acts occurred, indicate that there was little difference between the position of R and M, and the defence itself, based as it was, on the common stories told by the accused made it idle for the trial judge to separate them any more than he did.

As to s. 21 of the Criminal Code, it was made clear by the Crown that it was relying on sexual acts by each of the accused and not on any common design or complicity by either of them in aiding or abetting the sexual assaults committed by the other. In the circumstances the trial judge was not at fault in failing to direct in respect of s. 21.

Finally on the corroborative effect of the evidence of an attempt, by an offer of money, to induce the complainant to withdraw the charges. Evidence of consciousness of guilt, deducible from an attempt to suppress evidence against him, is evidence which a jury may accept as corroborative of a complainant’s testimony. The trial judge indicated initially that there was no evidence that tied M into the attempt to have the charges withdrawn but he subsequently qualified, to M’s disadvantage, the initial instruction, leaving it to the jury to decide whether the attempt was made on behalf of M as well as of R. Even if this was a flaw in the charge, it did not warrant the setting aside of the verdict and an order for a new trial.

Director of Public Prosecutions v. Morgan, [1975] 2 All E.R. 347, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing appeals by co-

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accused from their convictions of rape. Appeal dismissed.

Brian H. Greenspan, for the appellant.

J.D. Ewart, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The appellant Mazza and a co-accused Rizzuto were convicted, after a trial before Parker J. and a jury, of raping the same woman who was, on the evidence, also raped by a third person. He was associated with the co-accused but was not apprehended. On appeal to the Ontario Court of Appeal, the convictions were affirmed, that of Rizzuto unanimously and that of Mazza by a majority, Dubin J.A. dissenting. Mazza has appealed to this Court as of right on three points of law on which Dubin J.A. dissented and on two other grounds on which leave to come here was granted.

The formal judgment of the Court of Appeal sets out the grounds of dissent in law in the following terms:

1. that the learned trial judge erred in law in that in his charge to the jury he failed to deal separately with the issues of fact and law which related to the guilt or innnocence of VINCENT MAZZA as distinguished from that of his co-accused, and

2. that he further erred in instructing the jury that there were only two verdicts for the jury to consider, but ought to have instructed the jury that they could acquit VINCENT MAZZA if they found FRANK RIZZUTO guilty, and

3. further erred in failing to instruct the jury as to the meaning and effect of s. 21 of the Criminal Code if they were to consider the threats and acts of violence of FRANK RIZZUTO as relevant to the guilt or innocence of VINCENT MAZZA,

The two additional grounds on which leave was given were formulated as follows:

4. That the learned trial Judge erred in law with respect to the issue of consent in failing to instruct the Jury that they must be satisfied beyond a reasonable doubt that the Appellant Mazza was aware that the Complainant was not consenting or that if she were consenting, she was doing so by reason of a consent which

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had been extorted by threats or by fear of bodily harm.

5. That the learned trial Judge erred in law in failing to instruct the Jury that evidence of an attempt to suppress evidence could only be capable of being corrobarative of the Complainant’s evidence with respect to the Appellant Mazza if the attempt was authorized or procured by the Appellant Mazza.

The main issue in the trial was that of consent or want of consent of the complainant to the intercourse and other sexual acts which, admittedly, were performed by the two accused and by the third person. The stories of the complainant and of the two accused were completely contradictory save as to the locale of the sexual occurrences. The complainant was brought, with her consent, to certain premises after accepting a ride home in a car with the two accused and one or two others. On her evidence, the detour to these premises was to enable the occupants of the car to pick up another person. There was no other person there, and it was when she asked to be taken home that the events occurred which led to the charges of rape against the two accused.

There was evidence, upon which the jury could act and did, that the accused Rizzuto used violence against the complainant to get her to submit to a series of sexual acts. After he had thus forced himself upon the complainant and had left the room, the appellant Mazza engaged in sexual activities with the complainant. There was no evidence from her of any active resistance to him but, equally, no evidence from her that would indicate consent. The third person who followed Mazza into the room after he had finished his series of sexual acts, admittedly, “raped” the complainant. What is raised in respect of Mazza’s intercourse and the other sexual acts in which he engaged with the complainant is alleged non‑direction amounting to misdirection by the trial judge in his charge in failing to direct the jury on the issue of Mazza’s awareness that the complainant was not consenting or that if she did consent, she did so under fear of bodily harm. This is ground 4 of the issues in appeal, and associated with it is one of the matters comprehended within ground 1.

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The trial judge’s charge proceeded from the base of the assertion of counsel for the two accused (who were separately represented) that the defence of each was common to both, that they were bound up with one another in meeting the charges of rape. This, of course, does not excuse a trial judge from the duty, which rests on him or her, to place before a jury every defence open to an accused for which there is some evidentiary foundation, or from the duty of dealing separately which each accused on a joint trial where the evidence indicates that their positions may not be common, even if counsel may have said this at the outset.

The trial judge in this case dealt fully with the issue of consent, with credibility of the complainant and of the two accused and of the other witnesses in respect of this issue, with the contradictions involved in the evidence, and with the jury’s function to determine, on all the evidence and in accordance with their own judgment of the veracity of the witnesses and of the weight they would attach to such evidence as they found acceptable, whether the Crown had established the want of consent beyond a reasonable doubt. He did not deal separately on this point with Rizzuto and with Mazza, and it was this with which Dubin J.A. took issue in the following passage of his dissenting reasons:

On the evidence before the jury, it was hardly open to them to acquit Rizzuto and to convict Mazza. On the other hand, it was open to them to convict Rizzuto but to acquit Mazza. If the jury believed the complainant’s testimony, it followed that Rizzuto was guilty of rape. It was open to the jury, however, to accept the evidence of the complainant and to acquit Mazza. She made her lack of consent apparent to Rizzuto. She did not do so with respect to Mazza, and Mazza was not present when Rizzuto raped the complainant. Mazza was obviously a man of the lowest morals and was lacking in sensitivity. The complainant was a mature woman. Although the issue of consent was common in the case against each of the accused, there was a marked contrast in the evidence on this vital issue. With great respect to the learned trial judge, it was never made clear to the jury that they could acquit one and not the other...

I did not understand from this and other passages in the reasons of the learned Justice of

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Appeal that he considered it open to the jury to find that the complainant had not consented to engage in sexual acts with Rizzuto and yet also find that she consented to such acts with Mazza. This would be clearly unrealistic, as Arnup J.A. stated in his majority reasons. Rather, it was Dubin J.A.’s view that it was open to the jury to find (and they should have been charged to consider this) that the accused Mazza did not know that the complainant was not consenting or had an honest belief that she was (see, in this connection Director of Public Prosecutions v. Morgan[2]) or that there was a reasonable doubt on the point.

The fact that the accused lied (in the view of the jury) in asserting consent by the complainant should not, ipso facto, deprive him of a right to have the jury properly charged on all the issues for which there is some evidentiary basis. The present case is not, however, one in which the appellant can complain of the failure of the trial judge to isolate the question of his possible lack of awareness of non-consent or of his honest belief that there was consent. He was present when Rizzuto threw the complainant on the mattress in the particular room, resulting in a bruise on her head when she hit the baseboard. He followed him into the room where he found the complainant naked and told her not to dress. When he finished with her he told her she had to “do the other guys”. To say, in such circumstances, that Mazza’s position was different from Rizzuto’s is, I think, very much overstating the case in his favour.

Similar considerations make it abundantly clear to me that the trial judge did not err in not making any sharp differentiation in his charge on the facts and on the law between Mazza and Rizzuto. He did tell the jury that each accused was to be dealt with “individually”, but the facts and the position advanced by the defence on the basis of the common stories told by the accused made it idle for the trial judge to separate them any more than he did.

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Another point of dissent turned on the alleged misdirection of the trial judge in telling the jury that there were only two verdicts open to them for each of the accused, that is guilty or not guilty of rape. According to Dubin J.A. the jury should have been told that there were four possible verdicts, namely, as to Rizzuto guilty or not guilty and as to Mazza, guilty or not guilty. He conceded, as is evident from the passage from his reasons, already quoted, that the jury could not possibly acquit Rizzuto and convict Mazza but said that the reverse was open to them. In view of what I have said on the interwoven question of the issue of consent, I need say no more on this point and it falls accordingly.

The final issue raised by the dissent of Dubin J.A. concerns the omission of the trial judge to instruct the jury on the application of s. 21 of the Criminal Code. Although counsel for the appellant urged this in his factum, it was not seriously pressed in oral argument. As put by counsel for the appellant in his written submission, the issue of s. 21 was necessarily involved in the trial judge’s direction that two verdicts only were open to the jury. The Crown, however, made it clear that it was relying on sexual acts by each of the accused and not on any common design, or on complicity by either of them in the sexual assaults committed by the other by way of aiding or abetting. It was not so much a question of common purpose or intention carried out by one of the accused but of a common purpose or intention separately carried out and separately treated in the Crown’s case. The record is too scanty of any indication of the Crown’s attempt to fasten guilt on one of the accused under s. 21 by reason of what was done by the other. I find no fault in the trial judge in not giving any direction in respect of s. 21.

This leaves for consideration the fifth point in this appeal, that relating to the trial judge’s charge on the corroborative effect of the evidence of an attempt, by an offer of money, to induce the complainant to withdraw the charges against the two accused. Admittedly, evidence of conscious-

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ness of guilt, deducible from an attempt to suppress evidence against him, is evidence which a jury may accept as corroborative of a complainant’s testimony.

In his charge to the jury, the trial judge made it clear, when he first dealt with the phone calls by the witness Thompson to the complainant and her husband, that they only implicated Rizzuto in view of the fact that the latter admitted that he asked Thompson to telephone, although denying that any offer of a bribe was involved. There was, as the trial judge then said, no evidence that tied Mazza into the phone calls, and hence they were only relevant to the case against Rizzuto and not to the guilt of Mazza. However, in a later part of the charge the trial judge said this:

When I spoke to you earlier I said there might not be any evidence pointing to Mazza. On that, I was accepting what counsel had said that—you may recall when I read Thompson’s evidence, on more than one occasion he said, “They told me this. They said that”—now that is direct evidence, if you accept that, you may think that Thompson had authority from both, but if you believe he did not have authority from Mazza then you don’t hold that evidence against Mazza.

This clearly qualified, to Mazza’s disadvantage, the earlier instruction, but it appears to have been prompted by the trial judge’s reconsideration of Thompson’s evidence and of the possible effect of the reference in that evidence to “they”, meaning the two accused. The trial judge obviously felt that he should leave it to the jury to determine whether Thompson had authority to speak for Mazza as well as for Rizzuto. Assuming that this was a flaw in the charge, I do not think that it warrants the setting aside of the verdict and an order for a new trial. The case against Mazza apart from this, and in the light of my rejection of the other grounds of appeal, was very convincing and I would apply, in respect of the fifth ground of appeal, the curative provisions of s. 613(1)(b)(iii) of the Criminal Code, as authorized by s. 623(1).

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Brian H. Greenspan, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.