COURT OF APPEAL FOR ONTARIO

DATE: 20030612 DOCKET: C35855

McMURTRY C.J.O., CRONK and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

WAYNE RONCIN

Appellant

Laura Hodgson for the respondent

Wayne Roncin in person

Heard: November 25, 2002

On appeal from the convictions entered by and the sentence imposed by Justice Paul H. Megginson of the Ontario Court of Justice on October 24, 2000.

BY THE COURT:

[1] The appellant was convicted of sexual assault pursuant to s. 246(1) of the Criminal Code and touching for a sexual purpose pursuant to s. 146(1) of the Criminal Code. He was sentenced to 13 months imprisonment, concurrent on each count. His appeal is from both conviction and sentence.

[2] The appellant was living in a common law relationship with the mother of the complainant. During the summer of 1988, when the complainant was 14 years old, she had been having problems with her back due to a scoliosis condition. According to the evidence of the complainant, the appellant visited her bedroom in the mornings before he went to work and gave her back massages.

[3] The complainant testified that during the course of a few months, the appellant continued to provide these massages on a sporadic basis and eventually he began to place his hand further down her side and touch her breasts. On one occasion, he asked her to turn over in order to feel her breasts. He told her that her body was acting sexually and he was just responding to it.

[4] She testified that on subsequent occasions, the appellant put his hand between her legs and rubbed her vagina and stuck his finger inside. He again told her that her body was sexually active and he was responding to it.

[5] The appellant testified in his own defence. He admitted that he provided back massages to the complainant. He testified that the back rubs had been recommended by a health care professional. According to his evidence, during one of those back massages she experienced an orgasm which he discussed with her. During the discussion, she complained about having sore breasts and asked him to look at them. The appellant testified that he thought he reached over and touched her breast and told her it was growing. After this incident, he did not again provide any back massages.

[6] While the trial judge did not give extensive reasons, it is clear that he accepted the evidence of the complainant, which he found was confirmed by her prompt complaint to her mother, and the appellant's lack of "any credible explanation for the admitted acts of 'bare skin back rubs', and discussing with the complainant her sexual development, rather than leaving these matters to the mother".

[7] The appellant raised the following grounds of appeal:

AS TO CONVICTION

(a) The trial judge misapprehended the evidence of the complainant;

(b) The trial judge improperly shifted the burden to the appellant to offer a credible explanation for his conduct;

(c) The trial judge erred in finding that the appellant convicted himself out of his own mouth;

(d) The verdicts are inconsistent with the trial judge having found him not guilty of further counts of sexual assault and touching for a sexual purpose;

(e) The conviction is unreasonable and cannot be supported by the evidence.

AS TO SENTENCE

(a) The sentence is harsh and excessive, given the findings made by the trial judge.

[8] On the appeal before us, the appellant sought to lead fresh evidence through an affidavit of his son who had lived with his father and the complainant and her family between the ages of three years and eight years. The son had been unavailable at the time of the trial because he was in the custody of provincial authorities in Manitoba. The thrust of his proposed evidence was that, while living with the complainant's family, he had been subject to severe physical abuse at the hands of the complainant's mother and brother, some of which was witnessed by the complainant.

[9] It was not entirely clear why the appellant wished to put the affidavit evidence of his son before this court. However, during the course of the trial, there was some evidence led on the issue of the alleged abuse of the appellant's son on the theory that the charges before the court were brought by the complainant in retaliation for allegations previously made against her brother and mother. While it is doubtful that the proposed fresh evidence satisfies the test for admission in R. v. Palmer and Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, we did read it. Nevertheless on the view that we take of this appeal, it is not necessary to rely upon it.

[10] We have concluded that the trial judge erred when he accepted that the appellant's lack of any credible explanation for the admitted acts of bare skin back rubs and discussing with the complainant her sexual development rather than leaving these matters to the mother were confirmatory of the complainant's testimony.

[11] The appellant's admission that he performed the back rubs confirms the complainant's testimony to the extent that the appellant had the opportunity to commit the offences. The fact that he had no credible explanation for why he did so is not, however, confirmatory. Unfortunately, the trial judge appears to have used the latter reasoning. There are two problems. He seems to use disbelief of the appellant as positive evidence of guilt and, in consequence, shifts the burden on the accused to provide an explanation. Those are serious errors.

[12] We would not give effect to the other grounds of appeal.

[13] In the result, we would set aside the convictions and order a new trial. It is not necessary, therefore, to deal with the sentence appeal.

RELEASED: "JUN 12 2003" "RRM"

"Roy McMurtry C.J.O." "E. A. Cronk J.A." "Robert P. Armstrong J.A."