R. v. C. J. P. 2004 OCA mini 325

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complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.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.

DATE: 20040415

DOCKET: C39339

COURT OF APPEAL FOR ONTARIO

GOUDGE, MACPHERSON and CRONK JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

C. J. P.

Appellant

C. Jane Arnup for the respondent

Constance Baran-Gerez for the appellant

Heard: March 29, 2004

On appeal from the convictions entered by Justice Donald J. Gordon of the Superior Court of Justice on August 6, 2002 and the sentence imposed on November 14, 2002.

BY THE COURT:

1The appellant was tried before Justice D. J. Gordon of the Superior Court of Justice on two charges of indecent assault and two charges of sexual assault. He was acquitted of one count of sexual assault but convicted of the three other charges. He was sentenced to 18 months imprisonment to be followed by three years of probation. The appellant appeals against his convictions and sentence.

2The three complainants were sisters. The complainants' family and the appellant's family were close friends and lived near each other, first in Wales and then in Ontario (except for 1980-1984 when the appellant's family lived in British Columbia). The complainants testified that the appellant engaged in several sexual activities (exposing himself, sexual touching with his hands, oral sex and masturbating while engaging in sexual touching) with them from 1976 to 1986 when they were children.

3The appellant denied that he had ever sexually touched any of the complainants or exposed himself to any of the female members of the complainants' family.

4The appellant contends that the trial judge's convictions on three counts was unreasonable. The appellant points out that the trial judge acquitted him of one count of sexual assault against one of the complainants. However, the trial judge found him guilty of indecent assault in relation to the same complainant. The appellant submits that this inconsistency is inexplicable and, accordingly, the verdict is unreasonable.

5We disagree. The trial judge conducted a particularly careful review of the evidence of all three complainants. He described the evidence of two of the complainants as "clear and concise" and had no difficulty concluding that the appellant was guilty of the offences relating to them (counts 3 and 4).

6With respect to the third complainant, the trial judge found that the appellant had engaged in sexual activity with her on five separate occasions. He also concluded that although there were probably other incidents involving that complainant, he was not satisfied about these incidents to "the required level of proof beyond a reasonable doubt". The difference in his treatment of the various incidents does not render the verdict unreasonable. On the contrary, the difference is the result of careful assessment of the evidence relating to each incident. Four of the five incidents that grounded the conviction in relation to the third complainant had anchoring events about which there was considerably more detail than a number of the other events. Moreover, some of the events that the trial judge did not use as a basis for the conviction had evidence from the defence (in particular, the appellant's sons) that could have raised a reasonable doubt. Finally, the acquittal on count 2 is also explicable on the basis that the alleged time frame for this offence covered some (although not all) of a period when the appellant's family lived in British Columbia.

7The appellant's second main ground of appeal is that the trial judge erred by admitting and relying on similar fact and other discreditable conduct evidence. The evidence in question was testimony from the three complainants and their mother that the appellant exposed himself regularly, and masturbated occasionally, when other people were around, and that these activities took place in the complainants' family home when the appellant visited there.

8This was a multi-count indictment. No motion to sever was brought by defence counsel. In addition, no objection was taken by experienced defence counsel to the admission of this evidence. In our view, the evidence clearly met the test in R. v. Handy (2002), 2002 SCC 56, 1 C.R. (6th) 203 (S.C.C.) for the admission of similar fact evidence. It established a pattern of conduct in which the appellant was prepared to risk being discovered exposing himself to the female members of the complainants' family, often when other adults or even members of his own family might have seen him. This was germane given that defence counsel attacked the credibility of all three complainants by repeatedly referring to the implausibility of someone taking the risk of sexually assaulting them when people were nearby or even in the same room. Moreover, the appellant introduced considerable evidence of his good character. In light of these aspects of the appellant's defence, the evidence was properly admissible and the absence of an objection to the testimony of the complainants and their mother about acts of exposure and masturbation is not surprising. The trial judge found that there was no collusion. That finding was open to him on the evidence. In our view, the probative value of the challenged evidence was high and it outweighed any prejudicial effect.

9The appellant contends that a custodial sentence was inappropriate. The offences took place between 16 and 26 years before the trial and the appellant was a 62-year-old man with no criminal record.

10We disagree. The trial judge carefully considered the option of a conditional sentence. He reasoned:

The seriousness of the crimes, the circumstances involving the breach of trust by a family friend, the pattern of his conduct and the psychological damage inflicted on one of the three victims demand a period of incarceration.

We agree with this assessment.

11The conviction appeal is dismissed. Leave to appeal sentence is granted and the appeal against sentence is dismissed.

RELEASED: April 15, 2004 ("STG")