R. v. Auclair, 2001 CanLII 5 (ON CA)

DATE: 20010627 DOCKET: C31979

COURT OF APPEAL FOR ONTARIO

WEILER, AUSTIN AND BORINS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Michael W. Lacy and Alexander Toffoli for the appellant

(Respondent)

• and -

JACQUES AUCLAIR

David Finley for the respondent

(Appellant)

HEARD: May 11, 2001

On appeal from the conviction on October 19, 1998 and the sentence imposed on December 23, 1998 by Justice John S. Poupore.

AUSTIN J.A.:

Overview

1Jacques Auclair (“Auclair”) appeals from his conviction on charges of breaking and entering with intent, kidnapping, sexual assault causing bodily harm, sexual invitation and sexual touching of a person under the age of 14 years. Auclair also seeks leave to appeal from the sentence imposed of 11 years imprisonment with no eligibility for parole for 5½ years.

2The conviction appeal is based upon arguments of unreasonable verdicts and misapprehension of the evidence. The sentence is said to be unduly harsh and the order under s. 743.6(1) of the Criminal Code requiring the appellant to serve one half of his sentence before being eligible for parole, to be without any proper basis.

Background

3The appellant was about 53 years of age at the time of the offences charged. He had a grade 10 education and was an admitted alcoholic. He lived with Claire Leduc, then about age 30, in a rented house in St. Charles, Ontario. At the time of the offences charged, he was in the process of moving back to Sudbury to live by himself and had rented a U-haul van for that purpose. Leduc was not pleased with this change.

4The complainant, F.B., then age nine, lived with her mother D.W. and D.W.’s brother in a second floor apartment in Sudbury. The appellant and Leduc visited D.W. on the evening of December 3, 1996. The appellant had been drinking and continued to drink while on the premises.

5It seems clear that the complainant ended up driving off with the appellant and Leduc either that night or early the next morning. The accounts given by the complainant and her mother were quite different but they agree to the extent that her departure was without her mother’s consent. In examination-in-chief the complainant said the appellant picked her up and put her in his moving van. On cross-examination she agreed that it could have been Leduc who picked her up and took her to the van.

6The appellant said he had passed out at D.W.’s apartment. He said he remembered leaving it without the complainant and arriving at his home in St. Charles, but he remembered nothing further until he awoke next morning and found the complainant there. Leduc told him that D.W. had given permission for the complainant to go with them and that he had been passed out all night.

7Leduc did not testify at the appellant’s trial. She was charged jointly with the appellant with breaking and entering with intent and kidnapping. She was charged at the same time with two counts of breaching probation orders to keep the peace and be of good behaviour. On August 1, 1997 she pleaded guilty to kidnapping and to one of the breach of probation charges. She had a record extending back to 1987, comprising three convictions for theft under $1,000, two of making harassing telephone calls and one of criminal harassment. She received a sentence of five years for kidnapping, six months concurrent for breach of probation and a ten year prohibition order with respect to firearms under s. 100 of the Criminal Code

8The complainant testified that the appellant and Leduc took her in the van to a house she had never been to before. The man picked her up and took her inside and into a bedroom where he lifted up her night-gown and pulled down her underwear. She also testified that she couldn’t see because her eyes were closed. She testified that he pushed his finger into her vagina and it hurt her. He then tried to push his penis into her vagina. He told her to shut up because no one could hear her cry. Although she thought it was the man, the complainant agreed it could have been the woman (Leduc) who touched her.

9It was the testimony of the complainant that the appellant and Leduc then took her to another house which she could not see because her eyes were closed. She testified that the appellant picked her up and took her into the second house, putting her on the couch. He told the complainant to play with his penis but she refused to do so.

10The complainant testified that Leduc told her to hide upstairs when they heard someone approaching the house. She went to a bedroom and could hear talking downstairs. She thought the visitor sounded like a man. The complainant testified that she heard the three leave in a vehicle. In previous testimony, the complainant testified that she had seen the two men and the woman kill a bear. However, during the trial, she admitted that she did not see a bear, nor had she seen anyone shooting a gun, and must have been mistaken about hearing a bear.

11Ken Kiddle (“Kiddle”), who was convicted of sexual assault on a minor in 1990, testified that he was at home that day when Leduc came to visit him. She stayed for a while before they both went back to the residence where the appellant was. When they arrived, Kiddle observed the appellant drinking rye. He seemed to be sleepy and a little drunk while Leduc appeared sober. The three decided to go into St. Charles and the appellant and Kiddle returned to Kiddle’s residence in the U-haul van to get some money. Kiddle and the appellant both consumed alcohol while they were there. They returned to the residence to pick up Leduc before driving into St. Charles.

12According to the appellant he had no sexual contact whatever with the complainant. From his house in St. Charles he went to a second residence to get his furniture for the move. He took Leduc and the complainant with him. While there he drank alcohol and made food for the complainant and himself. He had intercourse with Leduc. She then went to visit Kiddle and was back in about fifteen minutes. Then the appellant drove Kiddle back to his place to get some money so they could go to the store. Kiddle and the appellant then returned to the second residence. The complainant was asleep so Leduc, Kiddle and the appellant went off to the store. On their way back to the second residence from the store they were stopped by police.

13The police intended to inquire about a missing person but upon observing the appellant, they arrested him for impaired driving. According to the police officer the appellant had a strong odour of alcohol, slurred speech, red glassy eyes and unsteady balance. The van was stopped at 3:25 p.m. A breathalyzer test administered an hour later produced readings of 252 and 248 mg. of alcohol per 100 ml. of blood.

14After the appellant was arrested and taken away, Leduc took the police to the second residence. The complainant testified that after she found herself alone, she took a chair and an axe, broke a window, crawled out and began walking in the direction of a construction site. The police found her about 4:20 p.m. by following her footprints in the snow from the second residence. The temperature was approximately -5° to -10° Celsius and snow was falling.

15The appellant’s defence was that Leduc somehow brought about his predicament. A few days before the appellant’s arrest, Leduc visited Gaetanne Poulin who had known Leduc since Leduc was a child. Ms. Poulin testified that during the visit Leduc had expressed anger towards the appellant and that Leduc said repeatedly that the appellant was “going to get it” and that he was not finished with her. Leduc would not elaborate except to say that the appellant would have trouble and it would be in the newspaper.

16The next evening, while Ms. Poulin, Leduc and the appellant were visiting James Pearson, Poulin heard Leduc say that she had something up her sleeve. Poulin also testified that she often observed Leduc wearing the appellant’s coat and playing with condoms. She testified that Leduc could physically handle the appellant when he passed out, which sometimes happened when he drank. Pearson testified that during the visit he offered the appellant some strong prescription sleeping pills. In Leduc’s presence he warned the appellant not to mix the pills with alcohol. When Pearson tendered the pills to the appellant, Leduc took them and put them in her purse.

17The appellant’s brother-in-law, Laurent Desormeaux, testified that the appellant and Leduc had visited him during the afternoon before going on to the D.W.’s. Desormeaux testified that the appellant was drinking beer, but Leduc did not seem to be drinking. Throughout the visit Leduc referred to having something up her sleeve but Desormeaux did not know what she was referring to. He testified that the appellant was tipsy when he left with Leduc at about 5:30 p.m.

18While visiting D.W. that evening Leduc mixed the appellant’s drinks and he passed out on the floor.

19Dr. Vijay Kumar examined the complainant once on the evening of the day she was found and again two days later. On the first occasion he observed two lacerations or breaks in the skin on opposite sides of the labia minora. He said the hymenal orifice was irregular and that there was redness and congestion of the vaginal area. During the second examination which was under anaesthetic, he found two further lacerations he estimated as being two to three days old. He said one was very unlikely to find these on a healthy nine year old and that the cause was an object small enough to go deep. He could not say what the object would be, but the cause could not be disease. There had to be some degree of force used.

20Later testing of complainant’s urine showed that there was metabolite in her system consistent with the ingestion of halcion. Halcion is a hypnotic drug intended to induce sleep.

21DNA analysis was also done, although not with respect to either Leduc or Kiddle. Ms. Pamela Newall testified as to the results; her testimony is summarized in the table set out as appendix A to these reasons.

Conviction Appeal

22The case was tried without a jury. The trial judge gave relatively short, but clear reasons. On appeal, the ground of unreasonable verdicts was argued largely on the basis of credibility, there being a very substantial number of conflicts in the testimony of the prosecution’s witnesses. I am not persuaded however, that the weight of those conflicts is such that the verdicts could be said to be unreasonable and I would not give effect to that ground.

23On the other hand, the trial judge appears to have misapprehended some of the DNA evidence respecting the charges of sexual assault and sexual touching. Towards the end of his reasons the trial judge said:

The defense argues that the evidence of F.B., a child of nine when the events were said to have taken place, and 11 when she testified, is so full of inconsistencies that it cannot be relied upon as proof beyond a reasonable doubt of the accused’s guilt. The Court of Appeal in R. v. Stewart (1994), 18 O.R. (3d) 509 (C.A.) sets out clearly the way in which trial courts should view a child’s evidence. If it were only F.’s evidence left for the court to consider one would be hard pressed to say the Crown has proven its case against the accused beyond a reasonable doubt. However, there is a substantial body of evidence to corroborate F. Below is a non-exhaustive list of evidence, which corroborates the evidence of F.B.:

1. The evidence of D.W. of being awakened at 3:30 a.m. on December 4^th 1996 and hearing the voices of Jacques Auclair and Claire Leduc, and further, the voice of Jacques Auclair as he choked her.

2. The fact that the only means of transport the accused and Ms. Leduc on the night in question had was a three ton diesel truck, and Ms. Leduc had never had a driver’s license and little if any driving experience to get them 70 kilometers to St. Charles in winter snow conditions.

3. Ms. Leduc a very small woman is said to have accomplished the kidnapping and handling of Mr. Auclair and the child that night on her own.

4. The DNA evidence tendered at trial is completely consistent with the evidence of F.B. and her being sexually assaulted by the accused at the Gauthier residence on December 4^th, 1996.

5. The fact and manner of F.’s fleeing from the Paquette residence dressed as she was in the middle of the bush in winter and for the reason that she thought that the accused would come back.

In considering the evidence of the accused on its own, and in view of the other evidence both Crown and defense and all of the exhibits:

I do not believe the evidence of the accused, nor am I left in any doubt by the testimony of the accused. On the basis of the evidence I do accept, I am convinced, beyond a reasonable doubt the accused committed the offences alleged against him. [Emphasis added.]

24Contrary to the trial judge’s understanding of the evidence, it is clear from the testimony of Ms. Newall, which is summarized in Appendix A, that the DNA evidence was not “completely consistent” with the appellant having sexually assaulted the complainant. The trial judge appears to have misunderstood item 4 of Appendix A which states that a blood and semen stain on the inside of the appellant’s underwear “matched the appellant”, was “consistent with a mixture of the complainant and the appellant, however, [it is] overstating it to say that it matched the complainant” and it “could not be said whether the blood/semen stain was a mixture or layered over time”. According to Ms. Newall’s testimony the semen and blood stain found in the appellant’s underwear matched his DNA and was consistent with a mixture of the appellant’s and complainant’s DNA, but it could not be said to “match” the complainant’s DNA. The fact that there was semen on his underwear could be explained by his having had intercourse with Leduc. If the DNA in item 4 had matched that of the complainant, then that aspect of the DNA evidence would have been completely consistent with F.B. having been sexually assaulted by the appellant on December 4^th, 1996. That, however, was not the case.

25Perhaps more important, the trial judge did not deal in his reasons with the DNA evidence which tended to exculpate the appellant. Item 7 of Appendix A deals with a condom found in the appellant’s pocket. It had been used, but no semen was found on it. However, the condom was found to have two sources of DNA on it, the dominant one matching that of the complainant and the subordinate one being from an unknown source. In the circumstances, it is possible that the condom was used during the sexual assault on the complainant. It is significant that the test absolutely excluded the appellant as the source of this subordinate DNA.

26Earlier in his reasons, the trial judge stated that “the forensic, toxicological and DNA scientific evidence called by the Crown established the following:”, setting out the various items of scientific evidence linking the appellant to the offences, including item 4 of Appendix A. There is no mention, however, in any part of the reasons, to the exculpatory aspect of item 7 of Appendix A.

27While trial judges are not obliged to give reasons dealing with every aspect of the evidence, however insignificant:

Where the record including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly, the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. R. v. Harper (1982), 65 C.C.C. (2d) 193 (S.C.C.) per Estey J. at p. 210.

28Reading the reasons of the trial judge as a whole, it appears he misapprehended the evidence in item 4 of Appendix A and failed to apprehend the significance of item 7 of Appendix A. Failure to understand and apply this evidence renders the conviction unsafe. This leads me to conclude that there may well have been a miscarriage of justice with respect to the convictions for sexual assault and sexual touching. Accordingly, those convictions must be set aside and a new trial directed.

29The conviction for sexual invitation was based upon the complainant’s evidence that when they went to the second house, the appellant put her on the couch and told her to play with his penis but she refused to do so. It could be argued that this evidence stands by itself and that accordingly the conviction for that offence should not be set aside. The whole course of reasoning of the trial judge, however, was that the purpose of the kidnapping was the sexual gratification of the appellant. That reasoning is undermined and rendered suspect because of its connection to the convictions for sexual assault and sexual touching, which have been set aside. It is my view that in these circumstances it would be unsafe to leave standing the conviction for sexual invitation. I would, therefore, set it aside as well and direct a new trial on all three counts.

30Although it was not argued on the appeal, the matter of the halcion gives me some concern. It was mentioned as the first point in the recital of forensic, toxicological and DNA evidence in the trial judge’s reasons for conviction, but not otherwise in those reasons.

31At the outset of his reasons for sentencing, however, the trial judge said:

It is important to say something though about the incident.

On December the 3^rd, 1996 the offender, in the company of a female friend stopped at the residence of D.W. and her 11 year old daughter F.B., the victim in this matter. During this social evening there is some evidence that F. was drugged. This was done for the sole purpose of returning later to abduct her and this was accomplished.

Nothing further was said by the trial judge respecting the drugging. The uncontradicted evidence of Pearson was that he offered pills to the appellant, pills he said which would knock one out and when he held them out to the appellant, Leduc took them and put them in her purse. The drugging of the complainant and the appellant’s defence that he was also drugged required that that evidence be considered and dealt with, but it was not.

32For these reasons, I would set aside the convictions for sexual assault, sexual touching and sexual invitation and order a new trial with respect to them.

33The convictions for breaking and entering with intent and kidnapping are amply supported by the evidence. The trial judge accepted the evidence of D.W. that she was awakened early in the morning and heard the voices of Leduc and the appellant and then the voice of the appellant as he attempted to choke D.W. when they came back for the complainant. The trial judge also accepted the evidence that the appellant must have done the driving. I would therefore dismiss the appeal from the convictions for breaking and entering with intent and kidnapping.

Sentence Appeal

34The appellant spent two years in pre-trial custody. After conviction his counsel suggested a sentence of five years in addition, to reflect a total of nine years in custody. The Crown requested that in addition to the time already served, he receive a sentence of 15 years, together with an order under s. 743.6(1) of the Criminal Code that he serve half of his sentence before being eligible for parole.

35The trial judge began his reasons for sentencing as set out above in paragraph 31. He continued as follows:

The offender took F. to two isolated locations in the vicinity of St. Charles, Ontario where he sexually assaulted her on more than one occasion. As a result of his actions, and in her attempt to escape F. was fortunate to have survived.

36He then recited parts of sections 718 and 718.2 of the Criminal Code and continued as follows:

In deciding the appropriate penalty for this case I take into consideration the following factors which are not exhaustive:

(a) This was a particularly heinous set of crimes, which very nearly cost the victim her life.

(b) There was no motive for the crimes other than the sexual gratification of the offender.

(c) The offender’s addiction to alcohol.

(d) The age of the offender. He is now 55 years old.

(e) The age of the victim.

(f) The possible long term effects upon the victim.

(g) The long and serious criminal record of the offender.

(h) I find as a fact that the offender is a very real danger to the community.

(i) If rehabilitation and/or reformation are attainable with this offender it will take some considerable length of time.

(j) There is a definite need to deter this offender as well as any other member of the community from committing like offences.

(k) The range of sentence provided in the Criminal Code of Canada for the offences committed: count number one, life imprisonment; count number two, life imprisonment; count number three, 10 years; count number four, 10 years; count number five, 10 years.

(l) The representations made by counsel.

(m) The sentence range for similar type of offences, and

(n) The offender’s lengthy period of incarceration, pre-trial and pre-sentence; in excess of two years.

37The appellant was sentenced to 11 years for breaking and entering with intent, ten years for concurrent for kidnapping and five years for each of the sexual offences, all concurrent. An order was also made pursuant to s. 743.6(1) requiring the appellant to serve one-half of his sentence before being eligible for parole.

38With respect to s. 743.6(1) the trial judge said:

I am also satisfied, having regard to the circumstances of the commission of the offences and the character and circumstances of the offender, as well as the need for society to denounce this type of conduct and deter any other offender that the provisions of Section 743.6(1) of the Criminal Code of Canada ought to be invoked. This provision of the Criminal Code is rarely invoked, however as I have already stated, it is doubtful, given the offender’s past, that he can be rehabilitated.

If there is such a possibility it will take all of the time he is to spend in custody. Until then at least, he will constitute a grave danger to the community.

Further, it will serve to demonstrate how society denounces this form of conduct and how far it is prepared to go to invoke the principles of general deterrence.

39With regard to disparity he said:

Something must be said about the obvious disparity between the sentence and that given by Meehan J. to the co-offender [Leduc] who pleaded guilty before him. I have read the Reasons of Justice Meehan. There is do doubt that his greatest emphasis was on the principle of general deterrence emanating from society’s needs to protect our children. However, he also considered the particular circumstances of the offender before him; her mental state, criminal record, her involvement in the offences and the assistance she gave the police in locating the victim.

The involvement of this offender in the offence was far greater than that of Ms. Leduc. The kidnapping was carried out solely for his sexual gratification and at his instigation. As well, this offender’s criminal record demonstrates he is a far greater danger to the community than Ms. Leduc.

40The appellant was 55 years old at the time of sentencing. He had a lengthy criminal record going back to 1962. It included a ten year sentence, but no sex-related offences. Counsel for the appellant argues that the sentence was harsh, that there was gross disparity and there was no basis for a s. 743.6(1) order.

41Harshness and disparity may be dealt with together. Leduc may have had a lesser role in the offences, but they could not have been carried out without her co-operation. She received a five year sentence in addition to eight months pre-trial custody. She also pleaded guilty, as well as taking the police to the residence, resulting in the rescue of the complainant. The trial judge appears to have laid the drugging of the complainant at the feet of the appellant but whether that is fair is not at all clear. In any event the sentence must be reconsidered in the light of the setting aside of the convictions for sexual assault causing bodily harm, sexual touching and sexual invitation. In all of the circumstances the appropriate remedy in my view would be to set aside the sentences of five years each for the sexual offences, all concurrent and reduce the sentences for breaking and entering with intent and kidnapping from 11 years and ten years respectively to seven years and six years concurrent respectively.

42Section 743.6(1) of the Criminal Code permits the court to order that the portion of a sentence that must be served before an offender may be released on full parole is one-half of the sentence or ten years, which ever is the less. The section requires consideration of the circumstances of the commission of the offence, the character and circumstances of the offender and whether the expression of society’s denunciation of the offence or the objective of specific general deterrence so requires.

43It is significant that in this context the Code places denunciation and deterrence, specific and general, ahead of the rehabilitation of the offender. Section 743.6(2) provides as follows:

S. 743.6(2) For greater certainty, the paramount principles which are to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to those paramount principles.

44The reasons given by the trial judge for the making of the s. 743.6(1) order in this case are set out above. Their foundation is the finding that the sexual gratification of the appellant is the reason for the kidnapping. The setting aside of the sexual offences therefore requires a reconsideration. The appellant’s participation in the kidnapping cannot be doubted but his motivation and his precise role are now much less clear. In the circumstances, it is my respectful view that an order under s. 743.6(1) is no longer appropriate and I would therefore set it aside.

Disposition

45In summary, the appeal with respect to the convictions for breaking and entering with intent and kidnapping is dismissed. The appeal with respect to sexual assault causing bodily harm, sexual touching and sexual invitation is allowed and those three convictions are set aside and a new trial directed. Leave to appeal the two remaining sentences is granted and those sentences are reduced to seven years and six years concurrent, respectively. The appeal against the s. 743.6(1) order is allowed and that order is set aside.

RELEASED: June 27, 2001

“Austin J.A.”

“I agree K.M. Weiler J.A.”

“I agree S. Borins J.A.”

Appendix A

APPENDIX “A”

DNA EVIDENCE

PHYSICAL ITEM

FINDING

1. blood on the complainant’s face

• matched the complainant

2. blood on the blanket in the u-haul

• matched the complainant

3. hair on the complainant’s vagina

• matched the complainant

4. blood and semen stain on the inside of Appellant’s underwear

• matched the Appellant • consistent with a mixture of the complainant and the Appellant however, overstating it to say that it matched the complainant • could not be said whether the blood/semen stain was a mixture or layered over time

5. blood found on the mattress at the first home where complainant taken

2 sources of DNA (dominant and subordinate) • dominant profile matched the complainant • subordinate did not match but did not exclude Appellant

6. blood found on the Appellant’s shirt

2 sources of DNA (dominant and subordinate) • dominant profile matched the complainant • Appellant excluded as possible source of DNA; exclusion absolute • unknown source of subordinate DNA

7. swab of the inside and outside of the condom found on the Appellant

2 sources of DNA (dominant and subordinate) • dominant profile matched the complainant • Appellant excluded as possible source of DNA; exclusion absolute • unknown source of subordinate DNA

8. saliva found on the Appellant’s shirt

3 sources of DNA: • sample not consistent with Appellant or complainant • common characteristics with the unknown source of DNA from 6) and 7) above

9. blood stain found at the second home where the complainant was taken

• did not match either the complainant or the Appellant