COURT OF APPEAL FOR ONTARIO

DATE: 20000317

DOCKET: C29073

RE: HER MAJESTY THE QUEEN (Respondent) v. P. B. (Appellant)

BEFORE: OSBORNE A.C.J.O., FINLAYSON and LABROSSE JJ.A.

COUNSEL: James Fleming, for the appellant

Christopher Webb, for the respondent

HEARD: March 16, 2000

On appeal from his conviction by Mr. Justice T. O'Hara on November 15, 1996 and from the sentence imposed on February 17, 1997

ENDORSEMENT

[1] The appellant was convicted of four sexual offences committed on his step-daughter J. when she was between the ages of thirteen and fifteen. He was sentenced to five years’ imprisonment. He appeals his conviction and sentence.

[2] There are two issues raised on this appeal, namely, that the trial judge erred in assessing the complainant’s credibility and reliability on the basis of demeanour alone and that the verdict is unreasonable.

[3] With respect to the complainant’s credibility, the trial judge viewed her evidence as being inconsistent and he recognized that he should consider her evidence with great caution. He then described her demeanour and concluded that she had been an excellent witness.

[4] In dealing with the evidence of other witnesses, the trial judge properly considered the reliability of the evidence. He referred to the lack of memory and lameness of explanation, to evidence that was coherent, cogent and believable and to evidence that was rife with contradictions and inconsistencies.

[5] When considering the reasons of the trial judge in their entirety, it is apparent that he was alive to the reliability of the evidence and we see no reason to conclude that the trial judge would not have assessed the complainant’s evidence in the same manner as the evidence of other witnesses.

[6] As to the reasonableness of the verdict, the trial judge recognized that the complainant was a reluctant witness. The trial judge was also alive to the inconsistencies in her evidence and her delayed disclosure. In the end, he chose to accept her evidence.

[7] The verdict is not unreasonable.

[8] The appeal as to conviction is dismissed.

[9] Finally, with respect to sentence, in light of the seriousness of the offences and the criminal record of the appellant, it is our view that the sentence was fit. Leave to appeal sentence is granted but the appeal is also dismissed

(signed) "C. A. Osborne A.C.J.O."

(signed) "G. D. Finlayson J.A."

(signed) "J. M. Labrosse J.A."