W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– M.L. (Appellant)
BEFORE:
WEILER, CHARRON and SHARPE JJ.A.
COUNSEL:
Howard Borenstein, for the appellant
M. David Lepofsky, for the respondent
HEARD:
March 27, 2002
RELEASED ORALLY:
March 27, 2002
On appeal from the conviction imposed by Justice Catherine Dick Aitken, sitting without a jury, dated October 25, 1999 and from the sentence imposed by Aitken J. dated November 4, 1999.
E N D O R S E M E N T
[1] The appellant appeals his convictions for sexual assault, invitation to sexual touching and sexual interference (ss. 271, 151 and 152 of the Criminal Code). The sentence appeal was abandoned at the outset of these proceedings in light of this court’s decision in R. v. D., D. (March 21, 2002). The appellant alleges that the trial judge’s reasons disclose significant errors that had a material effect on her decision.
[2] The appellant was in a relationship with A.S., the complainant’s mother, for a period of about ten years. They lived together in a succession of three residences, along with A.’s two children from a former relationship, J.S. and C.S., and over time, two children born to the appellant and A. C. was 16 years old at the time of trial and 6 to 9 during the material period. J. was 17 years old at trial and 8 to 12 during the material period. Following a physical assault on J. by the appellant, A. ended the relationship with the appellant and moved out. Both J. and C. alleged that the appellant sexually assaulted them while they were living with him. The appellant was acquitted of the charges concerning C.
[3] J. testified to a series of incidents that took place over approximately four years. These included the appellant asking J. to rub his penis, having J. perform fellatio on him in the laundry room in the basement, and engaging in anal sex on J. when the appellant lived on Kent Street and also in a cornfield. J. testified that he told no one at the time because he was too scared and ashamed. He first disclosed the abuse to his girlfriend when he was about 15 years old. He initially refused her suggestion that he tell his father but, eventually, they both participated in telling his father. J.’s father contacted the police. Following his arrest and trial by judge alone, the appellant was convicted and sentenced to seven years’ imprisonment.
[4] The appellant makes four submissions that he submits reveal errors in the reasons of the trial judge in convicting him.
[5] Firstly, the appellant submits that the trial judge used neutral items of evidence to buttress the credibility of J. These included the layout of the basement and the fact that the appellant got up early and used the basement laundry room on occasion when the upstairs bathroom was occupied. In our view, the evidence was relevant in two respects. In its closing submissions at trial, the defence submitted that the Crown had not proved the appellant had the opportunity to commit the offences alleged. With opportunity squarely in issue, the trial judge noted that the appellant’s evidence confirmed that of J. with respect to opportunity in terms of location and time of day. She also used the evidence as a factor in her assessment of the reliability of J.’s ability to recollect in general. We would dismiss this first ground of appeal.
[6] Secondly, the appellant submits that the trial judge did not consider the criminal records of J. and the accused in an even manner in assessing credibility. The trial judge found J.’s two recent youthful convictions for shoplifting did not significantly affect his credibility. She found, however, that the appellant’s criminal record, which included more numerous and serious crimes of dishonesty, to be significant, and said that it did impact on her assessment of his credibility. We are not persuaded that the trial judge used an unfair differential standard to assess the evidence of J. and the appellant.
[7] Thirdly, the appellant submits that the trial judge improperly used the appellant’s prior consistent statement respecting the use of a condom to support the allegation of an assault when the appellant lived on Kent Street. The trial judge’s reference to this statement must be read in context. In this case, where the defence was relying heavily on inconsistencies, we are not satisfied that the trial judge made an improper use of the prior consistent statement. It was simply an observation on the absence of inconsistency on a material point.
[8] Fourthly, the appellant submits that the trial judge misapprehended the evidence. The Crown agrees that she did misstate one aspect of the evidence in the narrative portion of her 38 pages of reasons but submits that this was not material. J. was cross-examined respecting contradictions in his evidence concerning a sexual assault he alleged took place in a cornfield. The contradictions concerned whether he was alone with the appellant or with his siblings in the cornfield, and whether the reason he was in the cornfield was whether he was looking for an old car or frogs. J. explained the contradictions in his evidence when cross-examined by saying that there were two incidents in the cornfield and giving further detail with respect to each of them. The trial judge’s reasons indicate she was aware of the inconsistencies in J.’s evidence at the preliminary inquiry and at trial respecting the cornfield allegations. She was also aware that there was evolving disclosure and that J. said that the events blurred into one another. We are not satisfied that the trial judge’s mistake as to whether J. had mentioned two incidents or one incident earlier to the police materially affected her overall assessment of J.’s credibility.
[9] The appeal is therefore dismissed.
Signed: “K.M. Weiler J.A.”
“Louise Charron J.A.”
“Robert J. Sharpe J.A.”