DATE: 20060628

DOCKET: C41868

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and D.P.G. (Appellant)

BEFORE:

SHARPE, BLAIR JJ.A. and THEN J. (ad hoc)

COUNSEL:

Robert Sheppard

for the appellant

Paul McDermott

for the respondent

HEARD & RELEASED ORALLY:

June 26, 2006

On appeal from the judgment of Justice J.C. Kennedy of the Superior Court of Justice dated November 22, 2002.

E N D O R S E M E N T

[1] The appellant was convicted of sexual assault and sexual touching following a jury trial. The complainant, the appellant’s stepdaughter, was fourteen years old at the time of the alleged assault. She gave birth to a child and there was powerful DNA evidence that the accused was the father of the child. The accused testified and denied having had sexual contact with the complainant.

[2] The appellant submits that the trial judge erred in failing to give an adequate caution with regard to the complainant’s evidence of an earlier incident of sexual touching. The complainant’s evidence relating to the earlier incident was to the effect that under pressure from the appellant she had withdrawn her complaint. The trial judge cautioned the jury that this evidence was not “relevant…to the character of the accused” and “not an admissible fact to judge his character by in this proceeding”. The trial judge also cautioned the jury that the allegation of a past sexual act had not been proven and in a later portion of his charge, he instructed the jury that they were not to use evidence of prior convictions as evidence that the appellant was more likely to commit criminal acts in general. While it might have been preferable for the trial judge to have given a more direct and specific caution with respect to this incident, given the nature of this evidence, the purpose for which it was used in the context of the trial as a whole, and reading the charge in its entirety, we are not persuaded that there was any material error to the prejudice of the appellant.

[3] The appellant submits that the trial judge erred in failing to provide an adequate answer to a question asked by the jury. After some period of deliberation the jury asked a series of questions. The question at issue was: “Does the jury need to consider the credibility of exactly how, when and where the alleged events took place, as part of the determination of the verdict regarding the charges?”

[4] The trial judge stated that he was not sure what that question meant, but that it may have been dealt with in his answers to two additional questions posed by the jury. In answer to those questions, the trial judge indicated that if the jury found that there was sexual intercourse between the accused and the complainant during the dates set out in the indictment, that activity would satisfy the necessary elements of the offence.

[5] We do not accept the submission that the trial judge failed to deal with the jury’s question. Throughout his charge the trial judge instructed the jury that they were to consider all the evidence, including the evidence of the complainant. We do not agree that his answers to the jury’s questions left the jury with the impression that they could disregard the complainant’s account of how the sexual assault actually occurred and still find the appellant guilty. Nor did he err by instructing the jury that it was open to them to convict if they found there was sexual intercourse during the period alleged in the indictment.

[6] For these reasons, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Edward Then J. (ad hoc)