COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent/Appellant) - and - PHILIP PECOSKIE (Appellant/Respondent)
BEFORE:
MCMURTRY C.J.O., CATZMAN AND MACPHERSON JJ.A.
COUNSEL:
Anthony Moustacalis
for the appellant/respondent
Philip Pecoskie
Christopher Webb
for the respondent/appellant
HEARD:
July 5, 2002
On appeal from the conviction dated November 25, 1999 and the sentenced imposed on January 12, 2000 by Justice Terrence P. O’Connor.
E N D O R S E M E N T
Released Orally: July 5, 2002
[1] The appellant, Philip Pecoskie, was convicted of sexual assault following a trial by judge and jury. He appeals his conviction. The Crown cross-appeals the sentence imposed by the trial judge which was a conditional sentence of 2 years less a day with 180 hours of community service work.
[2] The appellant raises four grounds in his conviction appeal.
[3] First, the appellant contends that the Crown counsel at the trial engaged in improper conduct, including an abusive cross-examination of the accused, an invitation to the jury to engage in ‘reverse discriminatory reasoning’ and a misstatement of the evidence with respect to the accused “bragging” to a co-worker about his sexual activity with the complainant.
[4] We disagree. Crown counsel’s cross-examination of the accused was, in places, repetitive, but it was not abusive or unfair.
[5] When Crown counsel asked Mr. Pecoskie questions like “So, you didn’t find it surprising in the least that a beautiful young woman would want to engage in sexual relations with an older married man like yourself”, Crown counsel was not asking the jury to apply reverse discriminatory reasoning. Rather, Crown counsel was testing the probability, or improbability, of Mr. Pecoskie’s story.
[6] On the “bragging” issue, the Crown was simply putting forward a permissible inference the jury could draw from Mr. Pecoskie’s testimony. He did, after all, tell his co-worker the next morning about his sexual relations with the complainant the night before.
[7] The appellant’s second ground of appeal is that the trial judge should not have charged the jury on post-offence conduct, specifically the appellant’s conversation with the complainant’s step-father about the address of the bed and breakfast establishment and Mr. Mead’s conversation with the complainant about “working something out”.
[8] We disagree. We think that the trial judge’s decision to charge the jury on these matters, and the contents of his charge, were correct. Specifically, the trial judge was careful to identify the innocent explanation for the first event and to remind the jury that both Mr. Pecoskie and Mr. Mead denied that the second event took place.
[9] The third ground of appeal relates to two notes one juror sent to the judge shortly before the jury had begun its deliberations. In both notes, the juror complained about how long the trial had taken. The appellant contends that the trial judge should have conducted an inquiry to ensure that the juror could still do his job.
[10] We disagree. The trial judge discussed the notes with trial counsel. At the end of their first day of deliberations, when the jury was called back to the courtroom to be informed of the overnight hotel arrangements, the trial judge made a brief and indirect reference to the juror’s communication:
I know one of you has expressed some concern about personal circumstances and the time it has taken out of your lives. That, of course, applies to all of you and we certainly understand the difficulty you are under and the deprivation that you go through, the lack of attendance at your work and your families.
The trial judge then reminded the jury of their important task and observed that the criminal justice system “is grateful to you for the efforts you’re putting into this”.
[11] Defence counsel did not object to these comments by the trial judge. In our view, they were entirely appropriate.
[12] The fourth ground of appeal is that the trial judge erred in failing to charge the jury regarding the defence of honest but mistaken belief in consent.
[13] We disagree, for two reasons. First, we agree with the trial judge’s conclusion that the facts of the case did not warrant it. Second, and importantly, the trial judge raised this issue with counsel before he delivered his charge to the jury. Both counsel agreed that the facts of the case did not warrant a charge on this issue. As a general rule, it should be a very rare case indeed in which an appellate court would decide that a trial judge has committed a reversible error on a matter which was expressly considered and agreed to by both counsel and the trial judge.
[14] We would dismiss the conviction appeal.
[15] The Crown seeks leave to appeal against sentence and, if leave is granted, seeks the imposition of a custodial sentence of between three and four years. While we would not necessarily have imposed a conditional sentence at first instance, we are of the view that, having regard to the very restrictive conditions that formed part of this sentence, the narrow circumstances in which appellate intervention is warranted and the delay in the perfection and hearing of this appeal (for which both counsel accepted a measure of responsibility), we would not interfere with the appellant’s sentence. Leave to appeal is granted but the appeal against sentence is dismissed.
“R. Roy McMurtry C.J.O.”
“M. A. Catzman J.A.”
“J. C. MacPherson J.A.”
