R. v. O. (D.), 2001 CanLII 19055 (ON CA)

DATE: 20010626 DOCKET: C31048

COURT OF APPEAL FOR ONTARIO

FELDMAN, SHARPE AND MACPHERSON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Philip Perlmutter for the respondent

Respondent

• and -

D. O.

Gregory Lafontaine for the appellant

Appellant

Heard: June 8, 2001

On appeal from the convictions by Justice Robert Weekes, sitting with a jury, dated June 29, 1998, and the sentence imposed on October 13, 1998.

MACPHERSON J.A.:

A. INTRODUCTION

1The appellant, D.O., was convicted of the offences of indecent assault and gross indecency following a jury trial presided over by Justice Robert Weekes in Bracebridge in June 1998. The time frame set out in the indictments was 1973 – 1982 and the complainant was T.M., the appellant’s step-daughter at the time. In October 1998, the trial judge sentenced the appellant to 12 months imprisonment for the indecent assault conviction and 12 months concurrent for the gross indecency offence.

2The appellant appeals his convictions on four grounds: (1) an improper cross-examination of the appellant designed to show that he was a person of bad character; (2) the failure by the trial judge to warn the jury against drawing an improper propensity inference with respect to the lifestyle of the appellant and his former wife (the complainant’s mother); (3) an insufficient warning to the jury about relying on the complainant’s evidence after a 20 year lapse of time between the dates of some of the alleged incidents and the laying of the charges; and (4) the failure to stay one of the convictions on the basis of the principle in R. v. Kienapple (1974), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.). The appellant also appeals his sentence. He contends that the trial judge erred by not imposing a conditional sentence.

B. FACUTAL BACKGROUND

3The complainant was the appellant’s step-daughter and the only Crown witness. She alleged that the appellant sexually abused her in various homes on a total of six or more occasions by digitally penetrating her, masturbating her and performing oral sex on her. She also testified that the appellant ground his body against her, used her hand to masturbate himself and forced her to perform oral sex on him.

4T.M. testified that she disclosed the sexual abuse to her mother in the appellant’s presence when she was approximately 12 years old, but that her mother did not believe her. She did not report the allegations to the police until she was an adult following two years of behavioural therapy, and she told her sister and half-sister about the allegations when she was 22 or 23 years old.

5The appellant testified in his own defence and denied the allegations. The appellant’s daughter and another step-daughter also testified on his behalf. They said that the appellant had never sexually abused them or acted inappropriately towards them. All of the defence witnesses testified about inappropriate sexual activity on the part of D.H., another step-father, against all three girls.

6There are other facts relevant to the appeal. I find it convenient to refer to them in the context of the specific grounds of appeal to which they relate.

C. ISSUES

7The issues on the appeal are:

(1) Was the cross-examination of the appellant by the Crown improper in that it was designed to show that he was a person of bad character?

(2) Did the trial judge err by not warning the jury against drawing a propensity inference as a result of the evidence of the lifestyle of the appellant and his former wife, the complainant’s mother?

(3) Did the trial judge err by not giving the jury a sufficient warning about relying on the complainant’s evidence in light of the long period of time between the alleged incidents and the laying of charges?

(4) Did the trial judge err by refusing to stay one of the convictions on the basis of R. v. Kienapple?

(5) Did the trial judge err by not imposing a conditional sentence on the appellant?

D. ANALYSIS

(1) Improper cross-examination

8The appellant contends that the Crown conducted an improper cross-examination of the appellant focussing on his alleged shortcomings as a parent vis-à-vis his other children. The appellant cites the following examples of improper areas explored by Crown counsel in his cross-examination of the appellant: the appellant had custody of his son but did not take care of him and placed him to live with a couple unrelated to him; the appellant had no interest in the whereabouts of his daughter K. between the ages of 3 and 16; the appellant allowed his daughter to “fend for herself” after she became 5 years of age; and the appellant had allowed his step-daughter J. to move back to live with her mother S.M. when he knew that S.M. was not taking care of the children properly. The appellant contends that questions relating to these events were designed to portray the appellant as a bad and unloving father. The inference the jury might draw from this evidence, the appellant submits, is that a bad and uncaring father might be the sort of person capable of committing acts of sexual impropriety on his step-daughter, the complainant.

9I do not agree with this submission for two reasons. First, the appellant testified at great length about his good parenting in relation to his children and step-children. Indeed, he tried to portray the complainant’s mother, S.M., in a very bad light and testified that he regularly took steps, at great personal and professional cost, to look after the children, including the complainant. For example, in his examination in chief, the appellant testified:

In 1978 I had arrived home from a western trip and found the children alone, and they had been for several days. I quit my job and stayed home. I got a job in Ralph Scales Refrigeration in Gravenhurst. I bought the house on Sarah Street and moved the children and myself into the house so it would be easier for me to look after them because I worked in Gravenhurst and Southwood was about 14 miles cross country across the old 13^th Concession to Gravenhurst.

In my view, in light of the extensive and detailed testimony by the appellant about how good a parent he was, including in relation to the complainant, there was nothing improper about the Crown’s cross-examination of him in this area.

10Second, in his examination in chief, the appellant testified about alleged sexual abuse of the complainant by another step-father, D.H.:

Well T.M. came over to the house one afternoon and she was very upset, and she asked me if she could move into the house. And I thought it was - - she was just mad at her mother, and as children will do, they, they - - they’re going to run away from home. She was - - I noticed she was very upset. She just didn’t calm down. I asked her what was the matter. Why did she want to move, move into the house? And she said that, she said that - - you’ll have to forgive me for what I’m going to say. She said that D.H. was drunk all the time. And her exact words were, “He’s eating my crotch.”

11In R. v. Rodgers (2000), 2000 CanLII 2144 (ON CA), 144 C.C.C. (3d) 568 at 576 (Ont. C.A.), Charron J.A. said:

Once the accused introduces evidence relating to the propensity of a third party, usually to establish that third party as an alternative suspect, the Crown may in reply offer propensity evidence relating to the accused. Otherwise, the trier of fact would be left with a distorted view of the facts: R. v. McMillan, 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, 33 C.C.C. (2d) 360; R. v. Parsons (1993), 1993 CanLII 3428 (ON CA), 84 C.C.C. (3d) 226 (Ont. C.A.) [Emphasis added.]

12The principle of fairness is applicable to the circumstances of this case. In light of the strong position the appellant took in his own testimony about his good parenting, his former wife’s bad parenting, and the presence of an abusive step-father, D.H., in the children’s lives, the Crown was entitled to cross-examine him about his parenting skills so that the jury would not be left “with a distorted view of the facts”.

(2) Charge to jury on propensity evidence

13The appellant submits that the learned trial judge erred by not warning the jury against drawing a propensity warning as a result of the evidence of the lifestyle of the appellant and his former wife, S.M., the complainant’s mother. The specific evidence the appellant relies on to support his contention that such a warning was required was: the appellant enjoyed watching pornographic movies in the presence of the complainant; the appellant had broken D.H.’s fingers when they became involved in a physical fight; the appellant was a bad and uncaring father; the appellant and S.M. maintained an unusual relationship over the years; and S.M.’s parenting was interrupted by her incarceration at the Vanier Centre for Women.

14I do not accept the appellant’s submissions on this point. The trial judge did tell the jury that the appellant’s lifestyle should not be a factor in their deliberations:

Bear in mind that this trial is not about the lifestyle of the accused. His relationship with S.M. sounds dysfunctional. However, that is not what this trial is concerned with. It is concerned with whether or not the Crown has proven beyond a reasonable doubt the allegations of T.M. or any of them. [Emphasis added.]

15Turning to the specific evidence relied on by the appellant on this issue, the trial judge specifically dealt with the evidence relating to pornographic movies:

I want to say something about the pornographic movies. T.M. told us that the accused made her watch them while she was living at Farquhar Street. The accused said that there were such movies that came into his possession and that, while he watched them with S.M., he never showed them to T.M. If you find as a fact that the movies were never shown by the accused to T.M. then the fact that the accused watched them is irrelevant to your consideration of these charges. If, on the other hand, you find as a fact that they were shown to T.M. by the accused that would demonstrate inappropriate behavior on the part of the accused in his dealings with T.M. which you might find to be supportive of her allegations against him. [Emphasis added.]

In my view, this was an entirely appropriate instruction.

16The evidence relating to the appellant breaking D.H.’s fingers was brief and did not prejudice the appellant at all. In cross-examination, the complainant testified that she remembered a particular house because D.O. and D.H. “scuffled and fought on the stairs” and “D.O. broke his [D.H.’s] finger”. In his cross-examination, the appellant explained that the incident took place because D.H. “had assaulted S.M., knocked her unconscious down the stairs” and “I broke his little fingers when he was trying to choke me and I threw him out of the house”. It is unlikely that the jury would draw a negative inference about the appellant from this evidence.

17The limited evidence about the appellant’s bad parenting was, as discussed in the previous section, appropriate in light of the appellant’s own evidence about his parenting and his attack on the suitability and conduct of S.M. and D.H. as parents.

18The evidence relating to the appellant’s unusual relationship with S.M. and her incarceration in a jail was led almost entirely by the defence and was intended to show the appellant in a more favourable light. This evidence did not prejudice him.

(3) Charge to jury re lapse of time between alleged incidents and laying of charges

19The appellant contends that the trial judge erred by failing to charge the jury that, in light of the passage of about 20 years between the time of some of the alleged events and the laying of charges, the evidence of the complainant could not be adequately tested. Accordingly, the appellant submits, the jury should have been told that it would be dangerous to convict on the complainant’s evidence alone unless the jury, scrutnizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

20The trial judge instructed the jury about the passage of time between the events and the laying of charges, but the appellant submits this only made matters worse. The trial judge said:

The evidence of the complainant must be scrutinized carefully . . . because of her age when the events are claimed to have happened and because of the lapse of time between the claimed events and her trial testimony.

He then pointed to the difficulties an adult might have in trying to remember traumatic events from her childhood, the fact that trauma from an assault might prevent a detailed accurate memory of an event and concluded:

Children may not be able to recount precise details of the when and where of an event. This does not mean that they have misconceived what happened and who did the act.

The trial judge then instructed the jury that, in spite of these difficulties, “the underlying standard of proof of the elements of the offence remains as proof beyond a reasonable doubt”. Later in his charge, the trial judge identified as a factor for the jury when considering the complainant’s testimony, “[h]er present ability to recall and the reliability of that memory”.

21The appellant’s submission on this issue boils down to the proposition that in historical sexual assault cases, the trial judge must instruct the jury about “the danger” of convicting on the uncorroborated evidence of the complainant. In support of this position, the appellant relies on the Longman line of cases in Australia, including R. v. GJH, [2001] N.S.W.C.C.A. 128, R. Mayberry, [2000] N.S.W.C.C.A.A. 531, R. v. Crampton (2000), 176 A.L.R. 369 (Aust. H.C.), and R. v. Longman (1989), 168 C.L.R. 79 (Aust. H.C.).

22I do not agree that in the circumstances of this case a special instruction was required. The rationale for the Longman line of cases is the effect of the lapse of time on the ability of the defence to test or challenge the complainant’s allegations. I am not persuaded that the circumstances of this case give rise to this concern. The appellant did not raise the issue with the trial judge. Both the appellant and his witnesses testified in great detail about the events that had occurred many years before. In my view, there is not a sufficient basis shown to justify the conclusion that the appellant was sufficiently prejudiced in mounting his defence by the passage of time between the events and the laying of charges to warrant a special instruction or caution along the lines of Longman.

23The appellant, relying on R. v. Kienapple, supra, submits that the trial judge erred in not entering a stay of proceedings on the conviction for gross indecency because there was a complete overlap between the offences of indecent assault and gross indecency.

24With respect, I disagree. Both the indictment and the trial judge’s jury charge made a clear distinction between the alleged acts of the appellant that gave rise to the charge of indecent assault and the single category of act, the appellant performing oral sex on the complainant, that served as the basis for the charge of gross indecency. Accordingly, there was not the overlap in charges prohibited by Kienapple. Moreover, I note that defence counsel, who was familiar with the evidence in the case, did not raise a Kienapple objection after the jury returned its verdict or during the sentence hearing.

(5) The sentence appeal

25The appellant was sentenced to 12 months imprisonment for the offence of indecent assault and 12 months concurrent for the offence of gross indecency. He contends that the trial judge over-emphasized the principles of general deterrence and denunciation and erred by not imposing a conditional sentence.

26The trial judge considered the leading cases in this court dealing with conditional sentences, especially R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.). He recognized that it “would be open to me to impose a conditional sentence if I were satisfied that it met the ends of sentencing”. Nevertheless, because the appellant “used T.M. as an object of sexual gratification when he ought to have been providing a safe haven for her”, the trial judge concluded that “the principles of general deterrence and denunciation would not be met by a conditional sentence on these facts”. It is well established that trial judges are to be accorded considerable deference when deciding whether or not to give a conditional sentence. In my view, there is no error of principle shown that would justify the intervention of this court.

E. DISPOSITION

27I would dismiss the conviction appeal. I would grant leave to appeal the sentence and dismiss the sentence appeal.