COURT OF APPEAL FOR ONTARIO
DOHERTY, MOLDAVER and SHARPE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
for the appellant
and
D.P.
Appellant
Gary Trotter
for the respondent
Paul Burstein
Heard:
November 24, 2000
and June 28, 2001
On appeal from conviction by Justice Walter T. Stayshyn dated April 17, 1997 and from sentence dated June 2, 1997.
BY THE COURT:
1On April 17, 1997, after trial by judge alone, the appellant D.P. was found guilty of one count of sexual assault upon A.M. and two counts of touching A.M. for a sexual purpose. On June 2, 1997, he was sentenced to five years imprisonment on the count of sexual assault and five years and two years concurrent on the two counts of touching for a sexual purpose. The appellant appeals against conviction and sentence.
Overview of Facts
2In 1993, the appellant formed a relation with the complainant's mother S.M. Between 1993 and 1996, even though he continued to maintain his own residence, the appellant essentially resided with S.M. and her children. During this timeframe, when the complainant was age 12 to 14, she claimed that the appellant engaged in various acts of sexual misconduct with her, including full intercourse on a regular basis.
3The complainant testified that the first incident occurred in early July 1995 when her mother was in the hospital giving birth to her fourth child. On that occasion, after the appellant had sent her two brothers to bed, he lured her into the basement on the pretext that he wanted to show her a gift he had purchased for her mother. Once downstairs, the appellant forced her onto the bed and proceeded to rape her. She stated that he used a condom at the time and that she was bleeding from her vagina after the attack. She also recalled the appellant saying that he would "hurt" her if she told anyone about the incident.
4According to the complainant, the sexual abuse continued until October 1996, at which time she left home and went into foster care. Several months later, she reported the abuse to a friend and this led to the Children's Aid and the Police becoming involved.
5Apart from the one incident in July 1995, the complainant was not asked to provide details about the other incidents of sexual abuse. She did however state that the abuse took various forms, including regular acts of intercourse, and it usually occurred when her mother was not at home or when she was showering. She testified that throughout the course of the abuse, the appellant regularly threatened her and she specifically recalled being told on more than one occasion that she would be a "goner" if she said anything.
6Despite these threats, the complainant testified that she did report the abuse to her mother on an intermittent basis. Furthermore, she claimed that on at least one and perhaps several occasions, her mother actually caught the appellant having sex with her. Nothing came of this however, because she and her mother were frightened of the appellant. According to the complainant, the appellant had a violent streak in him and he regularly assaulted her and the other children as well as her mother. In short, she portrayed him as someone who dominated the household and brooked no opposition.
7The complainant turned 14 on August 4, 1996. In October of that year, she left home and went into foster care. On November 5, 1996, within a month of leaving home, the complainant was examined by Dr. Anne Niec, an expert in the identification and interpretation of signs of sexual abuse in children.
8Called as a Crown witness, Dr. Niec testified that in the course of her examination, she observed abnormalities in the complainant's hymen which in her view were indicative of sexual abuse. Specifically, she noted that the hymenal opening was "quite large and gaping" and that the hymen itself had been torn or lacerated in two places. Although she could not date the injuries, she was certain that they had not occurred within the past 72 hours. According to Dr. Niec, these findings were abnormal for a young person A.M.'s age and they were "consistent with something" being "forced into her vagina".
9In cross-examination, Dr. Niec conceded that the historic injuries to the hymen could theoretically have been caused by innocent means, such as falling on a hard object that penetrated directly into the vagina. In her opinion however, events of this nature were extremely rare and it was far more likely that the injuries were the product of trauma from sexual abuse.
10The appellant testified on his own behalf and his evidence stood in stark contrast to that of the complainant. He denied ever sexually abusing her and he rejected her allegations of physical abuse. He did admit to being a strict disciplinarian and he claimed that the complainant disliked him because of this. In his mind, that accounted for her leaving home and falsely accusing him with sexual abuse.
Reasons for Conviction
11The trial judge delivered brief oral reasons for judgment. He recognized that the case boiled down to credibility and he identified several features in the complainant's evidence that caused him concern. Accordingly, he instructed himself on the need to proceed with caution before acting on her evidence alone to convict. In the final analysis however, taking into account the confirmatory evidence provided by Dr. Niec, he accepted the complainant's evidence over that of the appellant, whom he characterized as "an evasive and unresponsive witness totally lacking in credibility".
12In oral argument, the appellant chose to pursue two grounds of appeal in support of his submission that the convictions should be overturned and a new trial ordered.
(a) Ineffective Representation of Counsel
13The appellant submits that he was prejudiced because of trial counsel's failure to adequately and effectively represent his interests at trial. He bases this submission on counsel's failure to call the complainant's mother S.M. as a witness and his failure to seek out and possibly call an expert witness to challenge the medical evidence given by the crown's expert Dr. Niec.
14Beginning with the first complaint, the appellant submits that his counsel should have called S.M. to rebut the complainant's evidence that on at least one and perhaps several occasions, S.M. actually observed the appellant having illicit sexual relations with the complainant.
15Based on the record 1 , it is clear that as a result of his interviews with S.M., trial counsel knew that she would deny having seen any such encounters. What is unclear is whether she also would have denied that the complainant disclosed the abuse to her on an intermittent basis and was told to say nothing to avoid being harmed by the appellant. On this subject, the record merely indicates that trial counsel was told by S.M. that she did not believe her daughter's allegations. We have no way of knowing whether by this, S.M. was saying that she did not believe her daughter in general or that she did not believe the specific complaints made to her throughout the course of the alleged sexual abuse.
16If the latter, we see every good reason why trial counsel would have been reluctant to call S.M. as a witness. Not only would her testimony have confirmed the complainant's evidence of early disclosure, something the defence was not prepared to concede, it would also have required S.M. to explain why she disbelieved her daughter and what, if any steps she took to ferret out the truth.
17Apart from this potential concern, trial counsel provided two further reasons for choosing not to call S.M. as a witness. First, he felt that she would make a very poor witness because of her inability to articulate her evidence with any degree of certainty or consistency. Second, he was alive to S.M.'s concern that her disbelief of the complainant could result in Children's Aid removing her other children from the home. This was a risk she was not prepared to run and one which the appellant, when cross-examined on his affidavit, admitted he would not have asked her to take.
18In addition to the reasons articulated by trial counsel, we think that had S.M. been called, she might well have confirmed the complainant's evidence that the appellant was a violent, domineering individual who brooked no opposition in the household. Such evidence could only have enured to the benefit of the Crown, confirming, as it would have, the complainant's evidence that both she and her mother feared the appellant and felt helpless to put an end to his sexual abuse.
19In the last analysis, the decision whether to call S.M. as a witness came down to a judgment call on the part of trial counsel. Having weighed the pros and cons, he chose not to call her. In our view, he had good cause to believe that S.M.'s evidence might do the appellant more harm than good. In the circumstances, we are far from persuaded that the failure to call S.M. as a witness deprived the appellant of his right to effective counsel.
20The second concern involves trial counsel's failure to seek out and possibly call an expert witness to rebut the medical evidence given by Dr. Niec.
21On appeal, with the consent of the Crown, the appellant tendered an affidavit from Dr. Joseph Cramer, an obstetrician and gynecologist with approximately 20 years experience. Dr. Cramer was cross-examined on his affidavit and a transcript of his evidence was also filed.
22Without going into detail, suffice it to say that Dr. Cramer took no issue with most of the evidence given by Dr. Niec. Specifically, he confirmed that the injuries to the complainant's hymen had been "caused by penetration of the complainant's vagina involving force". He further confirmed that the historical injuries were caused by repeated penetration and that the penetration "was consistent with intercourse and not a blunt trauma injury". Unlike Dr. Niec, however, he was not prepared to accept that the injuries were the product of sexual abuse. Rather, in his opinion, they were equally consistent with consensual sexual activity.
23The appellant submits that his right to effective representation was compromised by trial counsel's failure to seek out an expert such as Dr. Cramer. He further submits that the outcome of the trial may have been different had Dr. Cramer's evidence been before the trial judge.
24We agree that it would have been prudent for trial counsel to seek out an expert witness such as Dr. Cramer to rebut Dr. Niec's testimony. That said, we disagree with the appellant's further submission that the outcome of the trial may have been different had Dr. Cramer testified.
25The issue at trial was not whether the appellant engaged in consensual sex with the complainant but whether he engaged in sex with her at all. Dr. Niec and Dr. Cramer were both of the view that the abnormalities to the complainant's hymen were consistent with repeated acts of intercourse and inconsistent with any other rational explanation. To that extent, their evidence confirmed the complainant's testimony.
26At trial, no suggestion was put to the complainant that she had engaged in consensual intercourse with the appellant; nor was there an attempt on the part of the defence to lead evidence that she had engaged in consensual intercourse with someone other than the appellant during the relevant timeframe.
27Put at its highest, had Dr. Cramer testified at trial, his evidence may have left the trial judge with a doubt about whether the sexual conduct between the complainant and the appellant was consensual as opposed to non-consensual. That finding however, would have been of no assistance to the appellant because under s.150.1(1) of the Code, the defence of consent was not available in relation to any of the counts in the indictment.
28For the appellant to gain any mileage from Dr. Cramer, we would have to be satisfied that had he testified, the trial judge might have had a doubt not only that the complainant engaged in consensual sex but that she did so with someone other than the appellant. Viewed in its most charitable light, Dr. Cramer's evidence could not possibly satisfy the second of these prerequisites. In our view, it would be rank speculation to infer from his evidence that the complainant was having consensual sex with someone other than the appellant during the relevant timeframe. Accordingly, we are not persuaded that the appellant suffered any prejudice from trial counsel's failure to seek out a defence expert witness.
29In sum, the appellant has failed to satisfy us that he was deprived of his right to effective representation at trial. Accordingly, this ground of appeal must fail.
Fresh Evidence
30The appellant seeks to tender the testimony of T. Q. as fresh evidence.
31T.Q. is a contemporary and one-time friend of the complainant A.M. In September 1999, at a Crown wardship proceeding involving A.M.'s siblings, her mother, S.M., and the Catholic Children's Aid Society, T.Q. was called as a witness on behalf of S.M.
32At the wardship proceeding, T.Q. testified that she and A.M. had spoken about the appellant on two occasions, once after A.M. had left home and was living in a foster home, the other long after the appellant's trial when A.M. was living at Grace Haven, a home for unwed mothers. According to T.Q., on the first occasion, A.M. told her that the appellant had sexually abused her but she (A.M.) provided no details of the sexual misconduct. On the second occasion, T.Q. claimed that A.M. recanted and told her that she had lied about being sexually abused by the appellant, stating instead that she had been raped by a former boyfriend.
33At the hearing of this appeal, which commenced on November 24, 2000, counsel for the appellant sought to tender T.Q.'s evidence from the wardship proceeding as fresh evidence. As a result of concerns raised by the court about the form of the proposed evidence, the matter was adjourned to enable the appellant to tender the evidence in proper form, assuming that it was still available.
34To that end, T.Q. was located and on January 31, 2001, she was questioned under oath by Mr. Trotter for the Crown and Mr. Burstein for the appellant. A transcript of her January 3lst testimony has been filed and it forms part of the record.
35Also forming part of the record is a lengthy videotaped statement given voluntarily by T.Q. to Detective Huss of the Hamilton-Wentworth Police in December 2000. In it, T.Q. readily recalls the conversation in which A.M. disclosed that she had been sexually abused by the appellant. In addition, contrary to her evidence at the wardship proceeding, she remembers that A.M. provided details of the sexual abuse, stating that the appellant had fondled her breasts, touched her vagina and raped her. Notably however, despite being questioned repeatedly about it, she denies having any further conversation with A.M. about the appellant and she is adamant that A.M. did not recant her earlier accusations. Of equal, if not greater significance, she flatly denies having given evidence to that effect at the September 1999 wardship hearing.
36Turning to her testimony on January 31, 2001, when questioned by Mr. Trotter about A.M.'s alleged recantation, T.Q. initially stated that A.M. did not recant her accusations while she was residing at Grace Haven or anywhere else. After being reminded of her evidence at the wardship proceeding, she immediately changed her response, stating that although A.M. did recant at one point, she could not say where it occurred. Mr. Trotter then reminded T.Q. of her statement to Detective Huss in which she clearly stated that A.M. did not recant her earlier accusations at any time and, in an effort to determine her final position on the issue, Mr. Trotter asked: "What's the right version"?, to which T.Q. replied: "I don't know". After several more questions and answers, T.Q. reverted to saying that A.M. did recant at one point. Ultimately, she maintained that position in response to a series of leading questions put to her by Mr. Burstein.
37A.M.'s evidence on the subject of recantation stands in stark contrast to that of T.Q. A.M. has now testified about this subject on two occasions, first at the Crown wardship proceeding in October 1999 and more recently on April 26, 2001 in the context of this appeal. In short, A.M. steadfastly maintains that she has never told T.Q. that she lied about being sexually abused by the appellant and she is equally adamant that she gave truthful evidence at the appellant's trial.
38Against this backdrop, the appellant submits that T.Q.'s evidence regarding A.M.'s alleged recantation should be admitted as fresh evidence because it meets the four criteria for the admission of fresh evidence set out at p. 205 of Palmer and Palmer v. The Queen (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.), namely:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, 1964 43 (SCC), [1965] 1 C.C.C. 142, 46 D.L.R. (2d) 372, [1964] S.C.R. 484;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief, and
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
39With respect, we disagree with the appellant's submission. Although we are satisfied that T.Q.'s evidence meets the first two criteria in Palmer, in our view, her evidence founders on the third test. Simply put, we are not persuaded that T.Q.'s evidence is reasonably capable of belief. To the contrary, when her evidence is considered as a whole, it is so highly suspect and unreliable that we consider it to be virtually worthless.
40Apart from anything else, we find it impossible to place any reliance on T.Q.'s evidence as it relates to the alleged recantation, given that her evidence on the subject appears to change not only from proceeding to proceeding but at times, from moment to moment. Just as she was certain at the Crown wardship proceeding that A.M. did recant, she is equally certain in her statement to Detective Huss that she did not. Indeed, in that statement, she denies having taken a different position on the subject at the wardship proceeding. As for her January 3lst evidence, while it is true that in the end, she maintains that A.M. did recant, her evidence on the subject is highly inconsistent and contradictory. Indeed, as we have noted, she initially took the position that A.M. did not recant, only to change her mind after being confronted with her testimony from the wardship proceeding.
41Other features of T.Q.'s evidence are equally unsatisfactory and leave us completely perplexed. For example, in her videotaped statement and her testimony on January 31, 2001, she is questioned about how and why she came to be called as a witness on behalf of S.M. at the Crown wardship proceeding. Without going into detail, suffice it to say that her answers are contradictory, confusing, and in the end completely unintelligible. In short, it remains a complete mystery to us as to how and why she came to be at that hearing.
42Our reticence about T.Q.'s reliability is heightened by her suggestibility and inventiveness as a witness. A prime example of this occurred in her videotaped statement when Detective Huss asked her if A.M.'s mother is a good cook. Initially, T.Q. replied that she had no idea because she had never eaten a meal at A.M.'s home. She was then confronted with her testimony from the wardship proceeding in which she stated that A.M.'s mother was a good cook. Realizing that she had been trapped, T.Q. suddenly remembered eating one meal at A.M.'s home and she relied on this as a basis for justifying her testimony at the wardship proceeding. In our view, her recovery, though quick, was completely contrived.
43We find it unnecessary to detail the many other contradictions and inconsistencies that pervade T.Q.'s evidence. In the last analysis, our concerns about her reliability as a witness prevent us from being satisfied that her evidence regarding the alleged recantation is reasonably capable of belief. Accordingly, we would not admit the proposed fresh evidence.
44We are not persuaded that the appellant was deprived of his right to effective representation at trial, nor are we satisfied that the proposed fresh evidence of T.Q. is admissible. Accordingly, the appeal from conviction is dismissed.
45The appellant received a global sentence for five years imprisonment. He submits that a penitentiary sentence of that length was uncalled for and that he should have received a sentence in the range of three to four years.
46While it may be that the sentence under review is at the high end of the range, we are not persuaded that it is manifestly unfit. The appellant's crimes were extremely serious. He engaged his young stepdaughter in acts of sexual intercourse and other forms of sexual misconduct on a repeated basis over a substantial period of time and in doing so, he committed a gross breach of trust. In the circumstances, we are satisfied that a lengthy penitentiary term was warranted and that the global sentence of five years imposed at trial was appropriate.
47Accordingly, although we would grant leave to appeal the sentence, we would dismiss the appeal.
RELEASED: "DHR" JULY 13, 2001
Signed: "M.J. Moldaver J.A."
"D.H. Doherty J.A."
"R. J. Sharpe J.A."