COURT OF APPEAL FOR ONTARIO
ROSENBERG, MacFARLAND and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Andras Schreck for the appellant
Respondent
- and -
STEPHEN CALWAY
Karey Katzsch for the respondent
Appellant
Heard: July 12, 2005
On appeal from the conviction entered by Justice Bonnie J. Wein of the Superior Court of Justice dated October 13, 2003 and the sentence imposed dated November 28, 2003.
ROULEAU J.A.:
1The appellant was tried by judge sitting without a jury and convicted of sexual assault relating to the molestation and sexual abuse of the complainant during the period when he was about nine to fourteen years old. The complainant was twenty-three at the time of the trial. The appellant was sentenced to three years imprisonment and now appeals his conviction, applies for leave to appeal sentence, and, if leave is granted, appeals his sentence.
OVERVIEW
2In or about 1989, the appellant, a single man in his twenties, was living in and taking care of a house owned by friends. Several children from the neighbourhood would meet there to watch movies, play video games and eat candy. The complainant, aged nine or ten at the time, was one of these children and developed a relationship with the appellant.
3The appellant began fondling the complainant’s genitals and, over time, sexual touching escalated to mutual masturbation, and oral contact with the genitals. The abuse ended several years later following a failed attempt at anal penetration and the physical struggle that ensued.
4About one year into the abuse, the appellant became romantically involved with the complainant’s mother and moved into their family home. The abuse continued during this period as well as on a few occasions after the appellant moved out of the home.
5Several years later the complainant went to the police and the appellant was arrested.
6The appellant argues that the trial judge’s approach to the assessment of credibility of the appellant and of the key witnesses was flawed to a degree requiring appellate intervention. Specifically, the appellant submits that the trial judge:
(1) disbelieved the appellant based on a misapprehension of the evidence;
(2) rejected portions of the appellant’s evidence simply because it was contradicted by the evidence of Crown witnesses; and
(3) applied greater scrutiny to the appellant’s evidence than to the evidence of Crown witnesses.
7I will address each of these issues in turn.
1) Disbelieving The Appellant
8The trial judge listed five reasons for rejecting the appellant’s testimony. The appellant argues that each of these was an error. The first reason was that the appellant had minimized his role in the complainant’s life. Although the appellant correctly points out that his testimony at trial acknowledged having been close to the complainant, having hugged him and having taken the complainant with him on his deliveries and so on, the evidence also discloses that, as pointed out by the Crown, there are several subtle examples of the appellant having understated his relationship and role as regards the complainant. For example, the appellant denied having formally tutored the complainant, said it was unusual or rare for the complainant to be alone in the house with him, denied hugging the complainant for long periods of time and denied going into the complainant’s bedroom when he came home late at night. There is evidence contradicting the appellant on each of these points. This conflicting evidence provides an adequate basis for the trial judge’s finding that the appellant, in his evidence, sought to minimize his role in the complainant’s life.
9The second basis for rejecting the appellant’s evidence was that his explanation for how his house became a meeting place for the neighbourhhood children was inconsistent with the evidence of the complainant’s mother and of another witness who, as a child, was a regular visitor to the appellant’s house. The appellant’s evidence was to the effect that the appellant and his sister started coming over, bringing all of their friends.
10On this point the trial judge erred at least to the extent that the complainant’s mother gave no testimony on this point. The contradiction between the appellant’s evidence and that of the complainant is limited to whether all of the children frequenting the appellant’s house were friends of the complainant and his sister. There is evidence suggesting that some of the children were not friends of theirs. Standing alone and in the context of the evidence as a whole I do not consider this apparent contradiction to be of much significance.
11The third basis for rejection was that the appellant’s explanation for having the children over to his house was “nonsensical”. The appellant testified that having the children over was a means of being accepted by the adults in the community. It was open to the trial judge to find that, in the circumstances, this explanation was improbable and lacked common sense. For example, there was other evidence that the appellant was already close to his neighbours on either side before the children started frequenting his house.
12The fourth reason advanced was that the appellant’s statement that he had only one pornographic tape and that it and his pornographic magazines were hidden was contradicted by the evidence and was inconsistent with the atmosphere described by the complainant. On this point, there was sufficient evidence regarding easy access to the pornographic material to support the trial judge’s finding.
13The final basis for the trial judge’s rejection of the appellant’s evidence was the appellant’s explanation of how a shower tile came to be broken and whether that incident precipitated his being asked to move out of the house by the complainant’s mother. The trial judge found this explanation to be in conflict with the mother’s evidence, evidence that she accepted.
14The appellant submits that there is no evidence that the mother saw this as a determinative event. That it was not a determinative event is supported by the fact that the appellant did not move out of the home until several months after that incident.
15In my view, the evidence does support the trial judge’s finding in this regard. The mother’s version of how the tile was broken is at variance with the appellant’s version. Further, with respect to the significance of this event, in response to a question as to her state of mind when she was told of the incident, the mother responded: “that’s it!” suggesting that this event was in fact the last straw. The fact that the appellant did not move out until several months after the event does not mean that he was not asked to leave because of this event.
16The outline by the trial judge’s review of the facts in her reasons for rejecting the appellant’s evidence was substantially correct and founded on the evidence. I would not, therefore, interfere with her finding in this regard.
2) Rejection Of Portions of The Appellant’s Evidence Because It Was Contadicted By The Evidence Of Crown Witnesses
17In my view, the trial judge did not, as the appellant alleges, simply reject parts of the appellant’s evidence because it was contradicted by the evidence of other witnesses. As set out earlier, the trial judge carried out a detailed analysis of the appellant’s evidence and found it wanting in a number of respects. It is in the wake of this analysis and in the context of the evidence as a whole that the trial judge reached her conclusions.
18This case is factually quite different from this court’s decision in R. v. Maharaj (2004), 2004 39045 (ON CA), 186 C.C.C. (3d) 247 cited by the appellant in support of his proposition. In the present case, it was open to the trial judge to disbelieve the appellant’s testimony and prefer that of the Crown witnesses. The trial judge did not engage in forbidden reasoning amounting to a shift in the burden of proof. After rejecting the appellant’s evidence, she assessed the inconsistencies in the complainant’s testimony and was satisfied of the appellant’s guilt beyond a reasonable doubt. The trial judge’s assessment and conclusions took into account the argued flaws in the complainant’s evidence as well as the evidence as a whole which includes the evidence of the appellant. As a result, I would not give effect to this ground of appeal.
3) Appellant’s Evidence Put Under Greater Scrutiny Than The Testimony of Crown Witnesses
19The appellant submits that a close analysis of the reasons shows that his testimony was subjected to much greater scrutiny by the trial judge than the testimony of the Crown witnesses, particularly the complainant and the complainant’s mother; in effect the trial judge’s analysis and approach to the Crown’s evidence was less thorough and far more forgiving. The appellant listed several significant inconsistencies in the complainant’s evidence and listed several reasons why the complainant’s mother’s evidence warranted greater scrutiny than that applied by the trial judge. In the appellant’s submission, the trial judge should have concluded that, as between the appellant’s evidence and the evidence of the complainant and the complainant’s mother, the appellant’s was more reliable.
20The appellant is correct in saying that there were significant inconsistencies in the complainant’s evidence. These, however, were noted and analyzed by the trial judge who accepted the explanations given and concluded that, viewed as a whole, the evidence was consistent in its essential aspects.
21The trial judge provided thorough reasons for her decision. At the outset, she correctly instructed herself on the proper approach to assessing evidence and examining inconsistencies as well as on the burden of proof. She specifically assessed the appellant’s testimony and determined that it should be rejected and that it did not raise a reasonable doubt. At the end of her reasons, she summarized as follows:
Applying the rigorous test for assessing evidence in a case where credibility is essential to the decision, and carefully assessing the argued flaws of the complainant’s evidence in the context of the evidence as a whole, I find I am satisfied of the accused’s guilt beyond a reasonable doubt.
22Cases such as these are always difficult and the trial judge is in a preferred position to assess the credibility of the witnesses. When read as a whole, I do not find that, as alleged by the appellant, the trial judge’s reasons are flawed or that she reversed the onus, even in a subtle way.
SENTENCE APPEAL
23The appellant submits that the trial judge misinterpreted this court’s decision in R. v. D. (D.) (2002), 2002 44915 (ON CA), 163 CCC (3d) 471 and erred in concluding that a conditional sentence was not supported by the case law.
24From my review of the submissions made by counsel on sentencing and the trial judge’s reasons for sentence, I am satisfied that she made proper use of the R. v. D. (D.) decision as setting out principles, but recognized the significant factual differences between that case and the present case.
25In the present case there were several significant aggravating factors. These included the fact that the appellant was in a position of trust and that the abuse continued over several years in increasing seriousness. The trial judge correctly identified the appropriate sentencing principles and the sentence imposed is within the appropriate range.
CONCLUSION
26For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence but dismiss the sentence appeal.
“Paul S. Rouleau J.A.”
“I agree M. Rosenberg J.A.”
“I agree J.L. MacFarland J.A.”