R. v. B.S.R., 2006 CanLII 29082 (ON CA)

Her Majesty the Queen v. B.S.R. [Indexed as: R. v. R. (B.S.)]

81 O.R. (3d) 641

Court of Appeal for Ontario,

Simmons, Cronk and Lang JJ.A.

August 25, 2006

Criminal law -- Evidence -- Credibility -- Burden of proof -- Accused being convicted of assaulting and sexually assaulting his wife -- Trial judge properly applying principles set out in R. v. W. (D.) and finding that accused's testimony was unworthy of belief -- Trial judge not reversing burden of proof by referring to accused's failure to explain complainant's head injury -- Trial judge simply responding to accused's claim that he was supportive and communicative husband and concluding that his evidence defied belief and significantly undermined his credibility.

Criminal law -- Evidence -- Prior discreditable conduct -- Accused being convicted of assaulting and sexually assaulting his wife -- Trial judge not erring in admitting complainant's evidence of past discreditable conduct by accused -- Evidence being relevant as going to history of relationship and accused's allegation of fabrication -- Defence counsel at trial initially opposing admission of evidence but later conceding its admissibility -- Trial judge properly weighing probative value of evidence against its prejudicial effect.

Criminal law -- Sentence -- Sexual assault -- Accused being convicted of assaulting and sexually assaulting his wife -- Offences taking place in context of lengthy abusive relationship although accused having no criminal record -- Children being present during commission of offences -- Sentences of 30 months' imprisonment for sexual assault and one year concurrent for assault and assault with weapon being affirmed on appeal.

The accused was charged with three offences against his wife: assault, assault with a weapon and sexual assault. The complainant testified at trial that the accused was controlling and abusive from the outset of their marriage and that he beat her up on more than one occasion when they quarrelled. She testified about three specific incidents that gave rise to the charges. She said that on one occasion, the accused put a shoelace around her neck and choked her; on a second occasion, he punched her several times on the side of her head with a closed fist and slapped her face with an open hand; and on a third occasion, he forced her to have sexual intercourse when she was in bed with their sleeping children. The accused denied the specific incidents, claimed that he was a loving and supportive husband, and alleged that the complainant had fabricated her evidence. The trial judge admitted the evidence of the complainant's family doctor that after the second alleged incident, she consulted him about a head injury, which she told him was inflicted by her husband, and that he diagnosed a concussion. The accused was convicted on all three counts. The trial judge sentenced the accused to 30 months' imprisonment for sexual assault and to concurrent one year sentences for the other two offences. The accused appealed the conviction and the sentence.

Held, the appeal should be dismissed.

The trial judge did not err by admitting evidence of the accused's prior discreditable conduct. She found that it had probative value because it went to the history of the relationship, to the complainant's credibility and to refute the defence argument of fabrication. It would have been preferable had the trial judge not identified the complainant's credibility generally as one of the issues in respect of [page642] which the discreditable conduct evidence was admissible, but the admission of the evidence was firmly anchored in its relevance to the other issues identified by the trial judge and by the Crown. The evidence was admissible to explain the nature and dynamic of the relationship between the complainant and the accused, to demonstrate the accused's animus toward the complainant, to assist in explaining the complainant's delay in fully disclosing the accused's assaultive acts, and to rebut the accused's claim of fabrication by the complainant. Importantly, the record revealed that during his submissions on the voir dire, defence counsel at trial effectively acknowledged that the evidence was admissible, subject to the trial judge's ultimate determination of the weight, if any, to be assigned to it. The trial judge did not admit the discreditable conduct evidence without first evaluating its prejudicial effect.

The trial judge did not err by reversing the burden of proof or by applying a disproportionate level of scrutiny to the defence's evidence. The trial judge noted that credibility was a central issue at trial, and properly instructed herself that it was wrong in law to pit the complainant's version of events against the accused's version of events. She provided detailed reasons for rejecting the evidence of the accused and his sister-in-law. The trial judge properly applied the principles enunciated in R. v. W. (D.). At first blush, the trial judge's references to the accused's failure to offer an explanation as to why the complainant had a head injury and why she was off work for three days was troubling, but the reference was part of a lengthy recitation of the factors relied upon by the judge as the basis for her conclusion that the accused was an unreliable witness. One of those factors involved rejecting his claim that he was a supportive and communicative husband. Read in this context, it was clear that, rather than reversing the burden of proof, the trial judge simply concluded that the evidence given by the accused defied belief, thereby significantly undermining his credibility.

The trial judge did not err in her treatment of the evidence of the complainant's statements to her doctor. She did not improperly use that evidence to bolster the complainant's credibility or to prove the truth of the statements. She concluded that the uncontroverted fact of the complainant's attendance at her doctor's office and the timing of that attendance provided "some corroboration" for the complainant's claim of an assault. While this use by the trial judge of the word "corroboration" was misplaced, the trier of fact in any criminal case is entitled, when assessing a complainant's credibility, to consider whether the conduct of the complainant is consistent or inconsistent with the complainant's evidence of what occurred. The trial judge was entitled to find that the complainant's attendance on the doctor supported her credibility.

In sentencing the accused, the trial judge stated that, except in extraordinary circumstances involving very dated offences, ill health, mental health issues, extreme remorse and such other factors, the offences charged warranted a penitentiary sentence. To the extent that she found that a penitentiary sentence was mandatory for a first offender in the accused's circumstances, she erred in principle. However, the sentences she imposed were appropriate for this accused and these offences. Although the accused had no criminal record, the offences were serious and occasioned considerable emotional trauma to the complainant. They occurred in the context of a domestic relationship while young children were in close proximity. The offences were not isolated incidents, but took place against the backdrop of a lengthy abusive relationship. The offences required a denunciatory sentence that also met the requirements of general and specific deterrence.

APPEAL from the convictions entered by Mossip J. of the Superior Court of Justice, dated February 27, 2004, for assault, assault with a weapon and sexual assault, and from the sentences imposed, [2004] O.J. No. 5969.

Cases referred to R. v. Handy, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 213 D.L.R. (4th) 385, 290 N.R. 1, 164 C.C.C. (3d) 481, 2002 SCC 56, 1 C.R. (6th) 203 (sub nom. R. v. H. (J.)), consd [page643] Other cases referred to R. v. Ay, 1994 8749 (BC CA), [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (C.A.); R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321, [2000] O.J. No. 2184, 145 C.C.C. (3d) 449, 34 C.R. (5th) 197 (C.A.); R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, [1999] O.J. No. 688, 169 D.L.R. (4th) 639, 132 C.C.C. (3d) 97, 23 C.R. (5th) 37 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 718 [as am.]

Christopher Hicks, for appellant. Alison Wheeler, for respondent.

The judgment of the court was delivered by

1CRONK J.A.: -- The appellant was convicted of one count each of assault, assault with a weapon and sexual assault upon his wife, M.R., by a judge sitting without a jury. He was sentenced to 30 months' imprisonment on the sexual assault charge and 12 months' imprisonment, to be served concurrently, on each of the remaining charges. The appellant appeals his convictions and sentences.

I. Facts

(1) The marriage

2The appellant and M.R. were married in 1994 pursuant to an arranged marriage. For about the next seven years, they lived with the appellant's parents and extended family, during which time they had two daughters. From September 2001 to February 2002, they lived in their own apartment with their children.

3The appellant and M.R.'s depiction of their marriage varied dramatically. In her evidence at trial, M.R. described a course of discreditable conduct by the appellant during the marriage, as well as incidents in the history of the marriage that the Crown asserted formed part of the backdrop to the offences charged but that did not involve prior "bad acts" of the appellant. M.R.'s testimony included evidence that the appellant was controlling and abusive from the outset of their marriage and that he beat her up on more than one occasion when they quarrelled. M.R. also said that, while living with the appellant's family, M.R. and the appellant [page644] fought frequently over little things; she "got along with everybody" in the household so long as she was obedient and conformed with the "rules"; if she wanted to go somewhere, she was required to obtain permission from her husband, his parents or his older brother; and, until 1999, the appellant controlled all their financial affairs, including their banking. In short, according to M.R., her freedom and autonomy were strictly regulated by the appellant, who abused her and controlled and dominated their life together.

4M.R. also testified about the three specific incidents that gave rise to the appellant's arrest. She said that these took place over a two-week period in late January and early February 2002, when she and the appellant were residing in their own apartment. The first incident occurred on January 27, 2002. M.R. alleged that, following an argument, her husband put a shoelace around her neck and tightened it, remarking: "Let's see if she dies or not" (the "choking incident"). M.R. said that the children were playing nearby in the apartment at the time of this altercation.

5The second incident took place on February 3, 2002. According to M.R., during the course of an argument and in the presence of the children, the appellant punched her several times on the left side of her head with a closed fist and slapped her on the face with an open hand (the "punching incident"). M.R. said that as a result of the appellant's conduct, she fell to the ground, experienced "a lot of pain", became disoriented, and suffered bumps to her head and swelling of the left side of her head.

6The third incident transpired on the following evening. According to M.R., on this occasion, the appellant forced her to have intercourse with him over her objections. This occurred when she was in bed with their sleeping children (the "sexual assault incident").

7In his testimony at trial, the appellant painted a very different picture of the marriage, his treatment of M.R., and their relationship with his family. He said that his wife did not require permission from anyone else for her activities and that they lived happily and without conflict with his extended family. He claimed that he was a loving and supportive husband and that his wife was the controlling and domineering spouse.

8The appellant denied each of the assaultive incidents giving rise to the charges against him. He claimed that they never took place and that they had been fabricated by M.R.

9The appellant and M.R. separated briefly on two occasions while they were residing with the appellant's family. On each occasion, the appellant sought legal advice to obtain custody of the children. The appellant claimed that they had no difficulties [page645] in their marital life once they reconciled after these separations. The only issue, he said, was that his wife had a "depression problem" and sometimes yelled at him and the children.

10When the appellant and M.R. eventually moved to their own apartment, the appellant arranged for his lawyer to prepare a "separation" agreement. It provided that the appellant would have sole custody of the children, and there would be no spousal support or equalization of family property, upon marriage breakdown.

11The appellant testified that he and M.R. jointly agreed to the terms of this agreement. In contrast, M.R. said that her husband pressured her to sign the agreement, telling her that they would not "live well" with each other unless she agreed to do so. Ultimately, she signed the agreement.

(2) The visits to Dr. Lin

12On February 4, 2002 -- the day after the punching incident -- M.R. went to see her family physician, Dr. James Lin, about a head injury, which she said was inflicted by her husband. M.R. testified that she told Dr. Lin that her husband "hit me a lot" and that she showed Dr. Lin the "bumps by feeling them". She also said that Dr. Lin asked her if she wanted to call the police. She refused because she believed that after she told the appellant that she "[had] a problem in my head", the appellant would "stop doing all that".

13Dr. Lin testified at trial for the Crown. He said that during the February 4 visit, M.R. told him that she had been assaulted by her husband, that he had punched her on the left side of her head, that her head hurt when Dr. Lin touched it, that this was not the first time that her husband had hit her, and that her husband wanted her to sign a document or "paper" and that they had argued about this, during which the appellant hit M.R. on the side of her head.

14Dr. Lin also said that he noticed no redness or bruising on M.R.'s face when he saw her on February 4. In addition, the results of an X-ray taken on February 5 were normal. Based on M.R.'s report to him of tenderness on her left temple, Dr. Lin diagnosed a concussion. He advised M.R. to stay home from work for three days, prescribed Advil and directed M.R. to apply ice to her head.

15In accordance with Dr. Lin's advice, M.R. stayed home from work for three days following February 4. At trial, the appellant acknowledged that M.R. had missed work for this period, but said that he did not know why she was not feeling well.

16M.R. attended at Dr. Lin's offices on two further occasions in the months of March and April 2002, complaining of dizziness, poor memory, headaches and forgetfulness. On March 12, 2002, [page646] Dr. Lin diagnosed M.R. as suffering from post-concussion syndrome. No treatment was ordered by him for this condition. A CT scan performed that month was normal. When he later saw her on June 6, 2002, Dr. Lin thought that M.R. might also be suffering from depression or anxiety. He prescribed anti-depressant medication.

(3) Valentine's Day, 2002

17During his testimony, the appellant recounted a series of events that he claimed caused the final breakdown of the marriage. By the appellant's account, he became suspicious of M.R.'s whereabouts throughout the day on February 14, 2002. In an effort to locate M.R. that morning, the appellant left work and returned home. When he discovered that M.R. was not at home, the appellant called M.R. repeatedly on her cell phone, asking where she was. He then went to a drug store looking for her, to his lawyer's office to obtain advice, and to his wife's eye doctor's office, where he confronted M.R. when she arrived for an appointment. The appellant then searched M.R.'s car, thinking that she may have been buying a gift for him. When M.R. returned home from work late that night, the appellant again confronted her. She told him that she had gone shopping for a Valentine's Day gift. He then told M.R. that she had seven days to produce proof to him of the purchase of a gift.

18One week later, on February 21, 2002, the appellant moved out of the marital apartment, taking the children with him. M.R. testified that she learned of this when the appellant called her on her cell phone and told her that he had left her, that he had taken the children with him, and that M.R. would receive "papers" from him at a women's shelter. M.R. then returned home from work and discovered that the appellant had removed the children's belongings, some of the furniture, and identification papers concerning both the children and M.R.

(4) M.R.'s disclosure to the police

19M.R. did not initially disclose her husband's assaults to the police. She testified that she did not report the choking incident because she thought that her husband would change, particularly as, by the time of this incident, he had secured her signature on the "separation" agreement. She also said that she refused to contact the police following the February 3 punching incident, notwithstanding Dr. Lin's prompt that she do so, because she believed that when the appellant learned of her head injury, his offending behaviour would stop. [page647]

20However, when M.R. learned that the appellant had left her and taken the children with him, she telephoned the police. Officer Geoffrey Belanger responded to the call. M.R. testified that when she met with Officer Belanger at her apartment in the early hours of February 22, she told him about the "papers" that her husband had indicated he was going to deliver and that her husband had taken the children and some of their belongings. She did not mention her husband's assaultive conduct because she was concerned about the "papers" and about what her husband was going to do. She said that Officer Belanger advised her to contact a lawyer.

21Officer Belanger testified at trial for the defence. He said that M.R. told him that she had signed a separation agreement with her husband, that she didn't know what she was signing at the time, that she was reporting that her husband had taken the children, and that she wanted the children back. He also testified that he examined a document provided by M.R. and, determining that her request for the return of the children was a family court matter, he advised her that she should consult a family law lawyer. He said that he "covered off any -- if there were any other problems or allegations and she had no other allegations, other than the fact that she wanted her children back".

22According to Officer Belanger, M.R. made no allegation that there was any sort of assault or threat in conjunction with the appellant taking the children and their belongings. On cross-examination, however, Officer Belanger acknowledged that he did not ask M.R. about the history of her life with the appellant or about sexual violence or assault because he did not think that the situation was a domestic assault matter.

23On February 24, M.R. met with Officer Manny Barbara at a women's shelter. M.R. testified that, although she told Officer Barbara about the punching incident, she did not mention the choking or sexual assault incidents because she thought that the police would say that the reporting of the former incident was "too late" and, with respect to the sexual assault incident, because she did not meet with a female police officer.

24Officer Barbara also testified at trial for the defence. He said that M.R. told him that she wanted her husband charged because she thought that this would give her custody of the children. M.R. was not cross-examined at trial on this alleged statement to the police officer.

25By February 28, 2002, the appellant and M.R. had attended in court and an interim custody order had been granted, on consent. It provided for the children to be with the appellant, except for weekday mornings and weekends, when they would be with M.R. [page648]

26About one month later, after an altercation with her mother-in-law, M.R. went to the police and disclosed a full history of her marriage to a female police officer. This included a recounting of her husband's alleged assaultive behaviour and, in particular, the choking, punching and sexual assault incidents.

II. Issues

27In support of his conviction appeal, the appellant argues that the trial judge erred: (i) in her treatment of M.R.'s evidence of the appellant's prior discreditable conduct during the marriage; (ii) by reversing the burden of proof and applying a higher degree of scrutiny to the defence evidence at trial than she applied to the evidence of M.R.; (iii) in her treatment of the evidence of M.R.'s statements to her doctor following the punching incident; and (iv) by failing to properly consider the defence evidence of the appellant's good character.

28The appellant also seeks leave to appeal against sentence, arguing that the trial judge erred by concluding that a penitentiary sentence was required in this case and by failing to impose a conditional sentence.

III. Analysis

A. Conviction appeal

(1) Evidence of discreditable conduct

29The appellant submits that the trial judge erred by admitting the evidence of the appellant's prior discreditable conduct and by treating this evidence as relevant to M.R.'s credibility. Relying particularly on R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 164 C.C.C. (3d) 481, the appellant argues that this set too low a threshold for the admissibility of the discreditable conduct evidence, the real purpose of which was simply to "bolster" the complainant's credibility and to establish that the appellant was a "bad" person. The appellant also asserts that the trial judge erred by admitting the discreditable conduct evidence without first considering its prejudicial effect and, further, by failing to identify its limited permissible use. I would reject these submissions.

30The trial judge's ruling regarding the admissibility of the prior discreditable conduct evidence was brief. It read as follows:

The Crown's application as filed with respect to the evidence of prior marital abuse and disharmony and the evidence as set out in their factum will be admissible. I have reviewed the case law. It is clear to me that this evidence has a probative value to this court. As set out in the case law, it goes to the history of the relationship. It goes to the credibility of the complainant. It [page649] goes to refute the defence's argument of fabrication, and it [is] highly probative as to the nature of the relationship between the accused and the complainant.

As to the weight to be given, it will obviously depend upon the cross-examination and the evidence of the accused.

31Both the Crown and defence counsel at trial filed detailed written facta and made oral submissions on the voir dire conducted to determine the admissibility of the discreditable conduct evidence. No doubt for that reason, the trial judge's ruling in support of the admission of this evidence was succinct. In my view, her ruling does not reflect legal error. I say this for several reasons.

32First, the trial judge's ruling must be understood in the context of the positions taken and the submissions made by the parties on the voir dire. In its factum, the Crown argued that the evidence of the appellant's prior discreditable conduct was admissible to:

(a) complete the narrative by permitting comprehension of the true nature of the relationship [between the appellant and M.R.];

(b) assist in refuting the anticipated defence that the complaint was fabricated by explaining the basis for [M.R.'s] fear, why she did not leave the marriage, why she did not report the incidents sooner, and why she did not report the incidents more fully when given the opportunity;

(c) explain the power and control dynamics in the relationship;

(d) demonstrate possible motive or animus on the part of the [appellant]; and

(e) avoid making [M.R.] describe a single act of violence in a vacuous context and consequently run the risk that a trier of fact might unfairly discredit her testimony.

33The Crown also asserted that the evidence of specific incidents in the history of the marriage that did not involve prior "bad acts" of the appellant was relevant to:

(a) providing background to the narrative;

(b) eliminating gaps and providing chronological cohesion;

(c) creating a logical framework in which to present the central allegations;

(d) explaining delay in reporting and disclosures; and

(e) establishing how a complaint came to be made when it was made.

34In its submissions on the voir dire, the Crown referred to R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, [1999] O.J. No. 688, 132 C.C.C. (3d) 97 (C.A.), R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321, [2000] O.J. No. 2184, 145 C.C.C. (3d) 449 (C.A.), and Handy, supra, in [page650] support of its argument that evidence of propensity, while generally inadmissible, may be admitted on an exceptional basis where the probative value of the evidence in respect of an issue in question is so high that it displaces the heavy prejudice to an accused to be occasioned by its admission.

35In this case, therefore, the issues in respect of which the discreditable conduct evidence was said to be relevant were clearly identified by the Crown, as were the legal principles governing the admissibility of such evidence, including those enunciated in Handy.

36The trial judge's ruling confirms that she reviewed the relevant legal authorities prior to determining the admissibility of the discreditable conduct evidence. Having conducted this review, she then concluded that the proffered evidence was admissible because it was relevant to the history and nature of the relationship between the appellant and M.R. and refutation of the appellant's anticipated defence of fabrication, as well as M.R.'s credibility.

37In Handy, at para. 116, Binnie J. of the Supreme Court of Canada noted"Anything that blackens the character of an accused may, as a by-product, enhance the credibility of the complainant." He went on to emphasize that the identification of credibility as the "issue in question" on an application to admit evidence of discreditable conduct "may, unless circumscribed, risk the admission of evidence of nothing more than general disposition ('bad personhood')". Propensity reasoning that is based solely on the general bad character of an accused is prohibited.

38In view of Handy, it would have been preferable had the trial judge not identified M.R.'s credibility generally as one of the issues in respect of which the discreditable conduct evidence was admissible. But the admission of this evidence was firmly anchored in its relevance to the other issues identified by the trial judge and outlined by the Crown in its factum. The evidence was admissible to explain the nature and dynamic of the relationship between the appellant and M.R., to demonstrate the appellant's animus toward M.R., to assist in explaining M.R.'s delay in fully disclosing the assaultive acts of her husband, and to rebut the appellant's claim of fabrication by M.R.: see F. (D.S.), supra, at paras. 19-20, 22 and 25-27. Moreover, unlike the facts in Handy, the evidence in this case was provided by M.R. herself, and not by a third party.

39Second, and importantly, although the defence initially challenged the admissibility of the discreditable conduct evidence, the record reveals that during his submissions on the voir dire, defence counsel at trial effectively acknowledged that this evidence was admissible, subject to the trial judge's ultimate determination of the weight to be assigned to the evidence, if any. [page651]

40Third, I do not agree with the appellant's contention that the trial judge admitted the discreditable conduct evidence without first evaluating its prejudicial effect.

41In the course of his oral submissions on the voir dire, defence counsel argued that the challenged evidence was "of so little probative value that the prejudicial effect cannot be outweighed by the probative value for the court's eyes", that it was "of virtually no probative value on the issue of power and control", and that it was for the trial judge to determine whether some of the issues to which the evidence was said by the Crown to be relevant were "so vague that their probative value is . . . outweighed by its prejudice[ial] effect".

42In the light of those submissions, I regard the trial judge's comments that the evidence had "a probative value to this court" and that it was "highly probative as to the nature of the relationship between the accused and [M.R.]" as a "shorthand" method of referencing the requisite balancing of the probative value of the evidence against its prejudicial effect. The trial judge's ruling, although terse, was clearly responsive to the submissions of counsel on the voir dire. Read in that context, it implicitly indicates that the trial judge was alive to, and assessed, the potential prejudicial effect of the discreditable conduct evidence.

43In the result, given her review of the case law governing the admission of the discreditable conduct evidence and the nature of counsels' submissions on the voir dire, I am not persuaded that the trial judge failed to then undertake the requisite balancing of the probative value of the evidence against its prejudicial effect. In my view, the record does not support this conclusion.

44Finally, I also disagree with the appellant's submission that the trial judge fatally erred by failing to identify the permissible use of the discreditable conduct evidence. During the voir dire, the trial judge posed the following question to counsel: "[B]ut what use I can make of it, what use I can make of this evidence?" Although it would have been of assistance had the trial judge specifically instructed herself on the use to which the discreditable conduct evidence could be put, she was not obliged to do so. The trial judge's exchanges with counsel on the voir dire demonstrate that she was alive to the fact that the proper use of such evidence was limited.

45More importantly, although the trial judge did not expressly caution herself on the well-established impermissible uses of evidence of prior discreditable conduct, there is nothing on this record to suggest that the evidence, once admitted, was used by the trial judge for a prohibited purpose.

46Accordingly, I would not give effect to this ground of appeal. [page652]

(2) Reversal of burden of proof and scrutiny of defence evidence

47Nor do I accept that the trial judge erred by reversing the burden of proof or by applying a disproportionate level of scrutiny to the defence evidence.

48M.R. and Dr. Lin were the only Crown witnesses at trial. As I have indicated, the appellant testified at trial. He also called K.R. (his sister-in-law), and Officers Belanger and Barbara as witnesses, together with four character witnesses.

49In commencing her analysis of the evidence, the trial judge observed that credibility was a central issue in the case. She then stated"[I]t is wrong in law to pit the complainant's version of events against the accused's version of events." Thus, the trial judge correctly recognized that her analysis could not be premised on a credibility contest between the appellant and M.R.

50The trial judge next expressly directed herself concerning the principles set out in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397. She then considered the inconsistencies in M.R.'s evidence and concluded "in the context of all the other evidence" that M.R. was a truthful and convincing witness. The trial judge set out detailed reasons for reaching this conclusion.

51Thereafter, the trial judge addressed the credibility of the appellant and his sister-in-law, K.R., and the reliability of their testimony. She provided detailed reasons for her rejection of their evidence, stating:

I found the testimony of [the appellant] not to be truthful. It is to be remembered that his core testimony was that none of the conduct attributed to him took place. [The appellant's] credibility was significantly impaired during the course of the Crown's cross-examination. To put it bluntly, [the appellant] was a dreadful witness, and I have concluded that his testimony was simply unworthy of belief. . . . . .

[The appellant's] testimony made no sense and was at variance with some aspects of everyday experience. . . . . .

I found the evidence of the sister-in-law to be scripted and to be incredible evidence. The sister-in-law was returning to live with [the appellant's] parents and [the appellant] himself. She was in a difficult situation. However, I did not find her evidence to be of any assistance in raising a reasonable doubt as to the guilt of [the appellant]. . . . . .

In light of the instruction I gave myself with respect to R. v. W.D., and for all of the above reasons, I do not believe [the appellant's] testimony nor does his testimony leave me in any doubt as to his guilt on all three counts in the indictment. [page653]

In considering the totality of the evidence of the Crown presented at this trial, I am satisfied beyond a reasonable doubt that [the appellant] committed the three offences set out in the indictment.

(Emphasis added)

These comments clearly indicate that the trial judge properly applied the principles enunciated in R. v. W. (D.) in this case and that, upon that application, she was satisfied beyond a reasonable doubt of the appellant's guilt on the offences charged.

52The appellant relies on the following passage from the trial judge's reasons to argue that the trial judge reversed the burden of proof:

[The appellant] was aware that his wife had gone to the doctor about a head injury on February 4, 2002. He offered no explanation to this court as to why she had a head injury, nor why she was off three days from work with a head injury. . . . Again, [the appellant] offered no explanation as to why he did not ask her about her injury and I find this fact defies credulity.

(Emphasis added)

53At first blush, the trial judge's references to the appellant's failures to "offer . . . an explanation" are troubling. However, they appear in the trial judge's reasons as part of a lengthy recitation of the factors relied upon by the trial judge as the basis for her conclusion that the appellant was an unreliable witness. One of these factors involved rejecting the appellant's claim that he was a supportive and communicative husband. Read in this context, it is clear that, rather than reversing the burden of proof, the trial judge simply concluded that the evidence given by the appellant defied belief, thereby significantly undermining his credibility.

54I, therefore, do not accept that the impugned passage from the trial judge's reasons indicates that she imposed an onus on the appellant to lead evidence. In all the circumstances, I am satisfied that the trial judge's reasons reflect no reversal of the burden of proof or erosion of the presumption of innocence, nor any approach to the evaluation of the evidence that was slanted in favour of the complainant.

(3) M.R.'s statements to Dr. Lin

55The appellant argues that the trial judge erred in her treatment of the evidence of M.R.'s statements to Dr. Lin on February 4, 2002 in three related ways: first, by using the evidence regarding these statements to "bolster" M.R.'s credibility to rebut an allegation of fabrication; second, by relying on M.R.'s statements for the truth of their contents; and third, by misapprehending the import of Dr. Lin's evidence regarding M.R.'s condition on February 4. I would reject these submissions. [page654]

56When considering Dr. Lin's evidence of M.R.'s February 4 visit in her reasons, the trial judge explicitly directed herself as follows:

The assessment and diagnosis of Dr. Lin is based entirely on what [M.R.] told him about her symptoms and what had happened to her. I instruct myself that [M.R.'s] complaints to the Dr. are not to be used for the truth of those statements.

(Emphasis added)

57The trial judge then continued:

However, I did find it important that [M.R.] attended at Dr. Lin's office complaining of an assault by her husband, prior to the final separation of the parties, and prior to the commencement of any court proceedings with respect to the custody of the children. Further, this attendance at the doctor's is one of three days that [M.R.] took off from work following what she alleged was an assault on her by her husband.

58Subsequently, when listing the factors that she regarded as relevant to her conclusion that M.R. was a truthful witness, the trial judge stated:

The fact that [M.R.] attended at her doctor the day after the physical assault to her head [lent] corroboration and credi- bility to that assault having taken place. The parties did not separate at the time of this assault, and it makes no sense that [M.R.] went to the doctor on February 4, 2002, in order to assist in fabricating assault charges against her husband, when she never charged him with assault at that time. Bearing in mind my earlier comments with respect to how Dr. Lin arrived at his diagnosis, and the use I may make of information [M.R.] gave her doctor, I find the fact that [M.R] went to the doctor and that the doctor diagnosed her with a head concussion provided some corroboration that the assault occurred.

(Emphasis added)

59In my view, properly read, these comments do not reflect an impermissible use by the trial judge of the evidence of M.R.'s statements to Dr. Lin. I say this for three reasons.

60First, I reject the appellant's claim that the trial judge improperly used the evidence of M.R.'s statements to Dr. Lin to bolster M.R.'s credibility to rebut an allegation of recent fabrication.

61The appellant asserts that the trial judge's reliance on the fact and timing of M.R.'s February 4 visit to her doctor reflects a misapprehension of both the defence theory relating to fabrication by M.R. and of the evidence relevant to that theory. He submits that, rather than recent fabrication, the theory of the defence was fabrication generally. Further, he contends that the evidence at trial made it clear that M.R.'s motive to fabricate pre-dated her disclosure to Dr. Lin. In that respect, he submits that Officer Barbara's testimony regarding the statements made to him by M.R. on February 24 demonstrated that M.R. was motivated to make [page655] false allegations against the appellant in a bid to improve her chances of obtaining custody of the children. He argues that while M.R.'s statements to Officer Barbara post-dated her disclosure to Dr. Lin of assaultive conduct by the appellant, M.R.'s motivation to fabricate pre-dated that disclosure because a possible custody contest was a live issue prior to February 4.

62I am not persuaded that the trial judge misapprehended either the defence theory of fabrication or the evidence relating to it. At trial, the defence mounted a strenuous attack on M.R.'s credibility for failing to disclose her allegations earlier than she did. Near the end of M.R.'s cross- examination, defence counsel suggested to M.R. that, by February 24, she had become frustrated with the police for their failure to charge the appellant after she told them that he had punched her in the head. Defence counsel then referred to M.R.'s subsequent attendance at the police station on March 20 and put the following question to M.R.:

And I'm going to suggest to you that it was at that time that you decided to make up this entire story about your husband's misconduct towards you?

63In my view, this extract from M.R.'s cross-examination indicates that recent fabrication was an element of the defence position at trial. What may not have been clear was the incidents to which the allegation of recent fabrication related. In the lead-up to the question set out above, defence counsel referred specifically to M.R.'s previous disclosure of the punching incident. To the extent that there was a suggestion of recent fabrication relating to the punching incident, at its core it amounted to an allegation of exaggeration. Moreover, it is apparent that the defence position at trial encompassed not only recent fabrication, but also fabrication generally.

64Nor do I accept the appellant's submission that the trial judge misapprehended the evidence relating to M.R.'s motive to fabricate.

65The appellant contends that because there had been previous separations and issues between M.R. and the appellant relating to the custody of their children, the trial judge's references to the timing of M.R.'s disclosure to Dr. Lin (being prior to the final separation on February 21 and before the commencement of any court proceedings) reflect a misapprehension of the evidence relating to M.R.'s motive to fabricate. I disagree.

66On their face, M.R.'s statements to Dr. Lin that she was assaulted by the appellant do not address the aspects of her evidence that the defence alleged were recently concocted (the choking incident and the sexual assault incident). Therefore, the evidence of M.R.'s disclosure to Dr. Lin does not rebut directly the allegation of [page656] recent fabrication. Further, read fairly, the trial judge's comments regarding the fact and timing of M.R.'s disclosure to Dr. Lin were part of an overall assessment by the trial judge of M.R.'s pattern of disclosure and its effect on M.R.'s credibility generally, and not as a response to the allegation of recent fabrication.

67It is implicit in the trial judge's reasons that she considered the timing of M.R.'s February 4 attendance on Dr. Lin in two contexts: first, in relation to the timing of the punching incident, and second, in relation to the status of the relationship between M.R. and the appellant at that time. After considering both contexts, the trial judge concluded that, rather than being an attempt to falsely implicate the appellant in criminal conduct as a means of gaining custody of the children, M.R.'s attendance on Dr. Lin and her statements to him were for the purpose of obtaining medical attention. Ultimately, the trial judge found that M.R.'s pattern of disclosure did not reveal fabrication. For that reason, among others, the trial judge rejected the defence allegations of both fabrication and recent fabrication. Viewed in their entirety, therefore, the trial judge's comments concerning the fact and timing of M.R.'s February 4 attendance on Dr. Lin do not reveal any misapprehension of the evidence concerning when a motive by M.R. to fabricate arose.

68Second, I am not persuaded that the trial judge used the evidence of M.R.'s statements to Dr. Lin improperly for the purpose of proving the truth of the contents of the statements. When dealing with Dr. Lin's evidence on this issue, the trial judge instructed herself explicitly that she could not use the statements for the truth of their contents. Later in her reasons, she again adverted to this important restriction on the use to which the evidence could be put.

69In this context, the trial judge concluded that the uncontroverted fact of M.R.'s February 4 attendance at her doctor's office and the timing of that attendance provided "some corroboration" for M.R.'s claim of an assault. While this use by the trial judge of the word "corroboration" was misplaced, the trier of fact in any criminal case is entitled, when assessing a complainant's credibility, to consider whether the conduct of the complainant is consistent or inconsistent with the complainant's evidence of what occurred: R. v. Ay, 1994 8749 (BC CA), [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (C.A.), at p. 469 C.C.C.

70I agree that the trial judge should not have used the term "corroboration" in the manner employed in her reasons for judgment. However, she was entitled to find, as she clearly did, that M.R.'s attendance on Dr. Lin supported M.R.'s credibility. The evidence of the fact and timing of M.R.'s February 4 visit to Dr. Lin, [page657] taken with the rest of the evidence, was relevant to the assessment of M.R.'s credibility.

71Finally, I do not accept the appellant's submission that the trial judge misapprehended the import of Dr. Lin's evidence. In this regard, the appellant contends that because Dr. Lin's evidence of his physical findings upon examination of M.R. on February 4 did not support M.R.'s account of the physical injuries that she suffered as a result of the punching incident, Dr. Lin's evidence should have caused the trial judge to have a reasonable doubt about M.R.'s allegations.

72Obviously, the trial judge could have taken a different view of the significance of Dr. Lin's evidence. Further, it would have been preferable had the trial judge specifically addressed in her reasons her view of the import of the discrepancy in the evidence concerning M.R.'s injuries relating to the punching incident. However, it was open to the trial judge to find, as she implicitly did, that what was important about Dr. Lin's evidence was the fact and timing of M.R.'s decision to seek medical attention and, having made that finding, that any discrepancy in M.R.'s evidence concerning the extent of her injuries was not sufficient to undermine her credibility.

73Accordingly, I would reject this ground of appeal.

(4) Good character evidence

74The appellant contends that the trial judge erred by holding that the defence evidence of the appellant's good character had no relevance to sexual offences; by failing to take it into account in her assessment of the appellant's credibility; and by failing to consider it in relation to the non-sexual offences with which the appellant was charged.

75The trial judge stated in her reasons:

In my assessment of the evidence in this case I have taken into account the character witnesses proffered by the defence, which evidence was that in the community and at work [the appellant] is known for his honesty and integrity. As courts have noted in the past, sexual misconduct in particular occurs in private, and in most cases will not be reflected in the reputation in the community of the accused for morality.

76In my view, these comments do not suggest that the trial judge dismissed the value of the good character evidence "out of hand" or that she failed to consider it. The appellant was unable to point to any part of the trial judge's reasons that called into question the trial judge's direct statement that she took the good character evidence into account in her overall assessment of the evidence including, therefore, her assessment of the evidence bearing upon the appellant's credibility and the likelihood that [page658] he committed the offences charged. In the absence of some indication to the contrary, there is no reason to conclude that the trial judge did not do exactly what she said she had done.

77Nor do I regard the trial judge's comment about the limited value of character evidence to offences that occur in private as a holding by her that the evidence of the appellant's character was irrelevant in the circumstances of this case.

78The trial judge's observation that sexual misconduct occurs in private and, hence, that evidence of the good character of an accused charged with a sexual offence may have limited value, was accurate. It does not indicate that she failed to consider the evidence of the appellant's character when assessing his credibility and the likelihood that he committed the offences charged. Rather, the comment in issue indicates that the trial judge tempered the mitigating value of the good character evidence, as she was entitled to do, in view of the fact that sexual and domestic violence offences often take place in private, in the absence of any witnesses. It was for the trial judge to determine what weight to attach to the good character evidence, if any.

79I also agree with the Crown that the good character evidence in this case was not particularly strong when considered in the light of the other evidence. For example, the appellant's own description of the events of February 14, 2002, which I outlined earlier in these reasons, demonstrated that he was capable of being controlling and suspicious, as alleged by M.R.

80Accordingly, I see no error in the trial judge's treatment of the evidence of the appellant's character in the community.

B. Sentence appeal

81In her reasons for sentence, the trial judge stated:

In my review of all of the cases, however, except in extra- ordinary circumstances involving very dated offences, ill health, mental health issues, extreme remorse and such other factors, the within offences warrant a penitentiary sentence.

82The appellant submits, and the Crown concedes, that this was an error. I agree. To the extent that the trial judge's statement indicated a conclusion by her that a penitentiary sentence was mandatory for a first offender, like the appellant, on the offences charged, the trial judge erred in principle. This court is required, therefore, to consider a fit sentence in all the circumstances without the usual deference to the sentencing judge's disposition.

83The trial judge imposed a sentence of 30 months' imprisonment on the sexual assault charge and a sentence of 12 months' imprisonment on each of the remaining two charges, to be served [page659] concurrently. In my view, these sentences were appropriate for this offender and these offences.

84Although the appellant had no prior criminal record, the offences were serious and occasioned considerable emotional trauma to M.R. They occurred in the context of a domestic relationship while young children were present in the home, in close proximity. Indeed, in the instance of the sexual assault, the crime was perpetrated while M.R. was in bed with the sleeping children. In addition, the offences were not isolated occurrences. They took place against the backdrop of a lengthy abusive relationship. Moreover, unlike many of the cases relied upon by the appellant, no guilty plea operates in mitigation of sentence. The offences here require a denunciatory sentence that also meets the requirements of general and specific deterrence.

85The appellant submits that a conditional sentence is appropriate and filed fresh evidence with this court in support of that submission. I disagree. Based on the factors that I have outlined, the sentencing objectives outlined in the Criminal Code, R.S.C. 1985, c. C-46, s. 718 are best served by a sentence of 30 months' incarceration on the sexual assault charge and 12 months' incarceration on each of the remaining charges, to be served concurrently.

IV. Disposition

86Accordingly, for the reasons given, I would dismiss the appeal from conviction. I would grant leave to appeal sentence and dismiss the sentence appeal.