Her Majesty the Queen v. L.M.
[Indexed as: R. v. M. (L.)]
Ontario Reports
Court of Appeal for Ontario,
Feldman, Tulloch and Lauwers JJ.A.
September 17, 2014
122 O.R. (3d) 257 | 2014 ONCA 640
Case Summary
Criminal law — Disclosure — Third party records — Accused charged with sexual offences against child complainant — Accused applying under s. 278.5 of Criminal Code for production of complainant's Children's Aid Society and counselling records — Trial judge properly dismissing application — Accused failing to establish that records were likely relevant to complainant's credibility and ability to recall events — Inconsistencies between complainant's original videotaped statement and her testimony at preliminary inquiry not significant or material — Criminal Code, R.S.C. 1985, c. C-46, s. 278.5.
Criminal law — Sentencing — Sexual offences — Accused sentenced to nine years' imprisonment for sexual offences against child complainant — Sentence affirmed on appeal — Trial judge not making findings of fact on sentencing which were inconsistent with jury's verdict — Sentence not harsh or excessive.
The accused was convicted of sexual assault and sexual interference and acquitted of forcible confinement and threatening death. The complainant was between the ages of nine and 11 at the time of the offences and 13 when she testified at trial. The accused applied under s. 278.5 of the Criminal Code for production of the complainant's third party Children's Aid Society and counselling records, taking the position that the records were necessary to assess her ability to recall the events at issue and her general credibility in light of inconsistencies between her original videotaped statement and her testimony at the preliminary inquiry. The trial judge found that the accused had not established that the records were likely relevant to an issue at trial. The application was dismissed. The accused was sentenced to nine years' imprisonment. He appealed his conviction and sentence.
Held, the appeal should be dismissed.
The third party records application was properly dismissed. The inconsistencies in the complainant's evidence were not significant or material to the substance of the allegations, and defence counsel at trial had the opportunity to address the inconsistencies head on through a very thorough and extensive cross-examination of the complainant. There was no basis for concluding that the records contained information which was not already available to the defence, that they had any impeachment value, or that they would otherwise affect the accused's ability to make full answer and defence. The applicant failed to show that the records contained information that was likely relevant to an issue at trial.
The accused argued that the allegations of a forced act of sexual intercourse was inextricably tied to the complainant's evidence about being threatened and forcibly confined, and that the acquittals on the threatening death and forcible confinement charge meant that they also rejected her evidence about sexual intercourse. He concluded that the jury's verdict was ambiguous so he made his own independent determination of the facts, and did not make findings of fact on sentencing which were inconsistent with the jury's verdict. He was satisfied that [page258] it was implicit in the conviction on the sexual offences that the jury rejected the defence position that the complainant fabricated her evidence of the sexual misconduct. The sentence was not harsh or excessive considering the breach of trust, the length of time over which the offences took place and their intrusiveness.
R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, J.E. 99-2312, 75 Alta. L.R. (3d) 1, 244 A.R. 201, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207, 69 C.R.R. (2d) 1, 44 W.C.B. (2d) 124, apld
Other cases referred to
R. v. B. (W.) (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, [2000] O.J. No. 2184, 134 O.A.C. 1, 145 C.C.C. (3d) 449, 34 C.R. (5th) 197, 46 W.C.B. (2d) 462 (C.A.); R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, [1991] S.C.J. No. 57, 125 N.R. 363, J.E. 91-1042, 93 Sask. R. 81, 66 C.C.C. (3d) 1, 6 C.R. (4th) 353, 30 M.V.R. (2d) 1, EYB 1991-67924, 13 W.C.B. (2d) 197; R. v. C. (B.), [2011] O.J. No. 4134, 2011 ONCA 604 [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 519]; R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, 228 C.C.C. (3d) 385, EYB 2008-130228, [2008] 5 W.W.R. 387, J.E. 2008-514, 371 N.R. 231, 290 D.L.R. (4th) 17, 425 A.R. 79, 54 C.R. (6th) 197, 87 Alta. L.R. (4th) 203, 168 C.R.R. (2d) 34, 78 W.C.B. (2d) 303; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 7, 8, 15
Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1‑278.91 [as am.], 278.3(2)-(6), 278.3(4)(d), 278.5, (1), (b), (2)
APPEAL by the accused from the conviction entered on December 23, 2011 and the sentence imposed on April 17, 2012 by M.F. Brown J. of the Superior Court of Justice, sitting with a jury.
Ariel Herscovitch, for appellant.
Lucy Anne Cecchetto, for respondent.
The judgment of the court was delivered by
1TULLOCH J.A.: — After a trial by judge and jury, the appellant, L.M., was convicted of sexual assault and sexual interference. In addition, he was found guilty of invitation to sexual touching, but the charge was stayed pursuant to the Kienapple principle. He was acquitted of forcible confinement and threatening death. He was sentenced to nine years in prison. L.M. appeals his convictions and sentence.
2The charges against L.M. all involved a single complainant, G.B., who is related to L.M. She is the daughter of L.M.'s great-niece. G.B. was between the ages of nine and 11 during the time of the sexual assaults. [page259]
3L.M. was in his late fifties and owned a horse farm at the time of the assaults. Initially, L.M. lived in a log house on the farm with his wife. After his wife died in 2008, he moved to a brick house to live with his adult biological daughter, N.W.
4L.M. first met G.B. when she was three years old. G.B.'s mother would bring her to L.M.'s farm to see the animals. Beginning in 2007, when G.B. was eight years old, she started to visit L.M.'s horse farm more frequently. The visits continued until 2010, when G.B. was 11 years old.
The Complainant's Statement to the Police
5In January 2010, G.B. provided a videotaped statement to police. She told police that when she was nine years old, approximately five months after she began visiting L.M.'s farm, L.M. started having improper contact with her. G.B. said it started when she accompanied L.M. on his firewood deliveries, during which L.M. touched her breasts, legs and thighs over her clothes. It progressed to L.M. entering her room at the log house on multiple occasions, lifting her nightgown and pulling down her underwear. One incident involved L.M. ejaculating on G.B.'s hand.
6Further, G.B. stated that after L.M.'s wife died and he moved from the log house into the brick house, he began to force vaginal and anal intercourse on her. According to G.B., L.M. would tie her hands with a spiked belt, put a cloth in her mouth and hold her down. G.B. also stated L.M. threatened to cut her throat if she told anybody about what he had done.
The Preliminary Inquiry Testimony
7During cross-examination at the preliminary inquiry, G.B. testified that the forced intercourse actually began at the log house, before L.M. moved to the brick house. The intercourse then continued at the brick house. She described being tied up with a rubbery "belt-type-cloth-thing". G.B. also stated that, after providing her statement to the police, she began to see a worker at the Children's Aid Society ("CAS") and a counsellor.
Evidence at Trial
8G.B. was 13 years old when she testified at trial. She explained that she had a passion for horses and dreamt of becoming a competitive horse jumper, and that the appellant facilitated that dream.
9G.B. stated that L.M. took her to his lawyer's office, where he had his will drafted, and told her that the will provided that [page260] the farm and stable would all be hers when she was 21. She indicated that she believed that this was going to happen.
10In cross-examination, G.B. agreed that she missed her horses so much after she stopped going to the farm in November that she would call L.M. to ask about the horses. However, she denied that her mom told her that she could get her horses if she told a lie about L.M. G.B. denied lying to the police, lying at the preliminary inquiry and lying at trial. She also denied that her mother had ever coached her to lie and denied believing that, by lying, she would get her horses back.
11She testified that, after an initial period, L.M. began touching her while she was in his truck, that the touching later escalated to more serious sexual assaults, and finally anal and vaginal intercourse as well as oral sex. She also gave detailed descriptions of L.M.'s use of lotion and lubrication, and described in detail how the acts of anal intercourse occurred. G.B. testified that when the assaults escalated in the log house, she just laid there and pretended to be asleep, as L.M. was bigger than her and she was scared that he might have a knife. She said she knew that he had guns. G.B. testified that it was only after L.B.'s wife died that he started to hold her down and have intercourse while in the brick house. She testified that her hands were not tied every time, nor was she gagged every time. She stated that he only put a cloth in her mouth when L.B.'s daughter, N.W., was home.
12With respect to being tied up, G.B. indicated in her original video statement to the police that she did not see the belt, as it only happened in the pitch dark of L.M.'s room. She described the belt as leather and said that when she tried undoing it, she noticed it had spikes on it. At the preliminary inquiry, she described it as kind of rubbery. She later testified at trial that there may have been more than one belt.
13A number of other witnesses testified, some of whom corroborated different aspects of G.B.'s evidence. The most significant of these witnesses was L.M.'s daughter, N.W.
The Evidence of N.W.
14N.W. is L.M.'s adult biological daughter who had been estranged from him, but rekindled their relationship after the death of his wife in 2008. She testified that L.M. had asked her to come and live with him, as he did not like living alone. She then started visiting on the weekends and staying overnight. She indicated that when she visited on the weekends, G.B. was always there. [page261]
15N.W. testified that she would either sleep downstairs or in G.B.'s room. G.B. never slept in the room with her, as G.B. always slept in the bed with L.M. N.W. testified that there was supposed to be a cot for G.B., but she never saw one. She stated that it was only after moving in that she realized that L.M. was sleeping in the same bed with G.B.
16N.W. testified that G.B. appeared to be L.M.'s whole world and L.M. was not interested in doing anything or meeting anyone unless G.B. was involved. N.W. testified that she spoke to L.M. on three or four different occasions asking why he was spending so much time with G.B. N.W. testified that L.M. would say that G.B. was his perfect girlfriend, and he just had to wait until she was 30. She indicated that she attempted to set him up to meet people on the computer, and on at least one occasion, he made a date with a woman, but he took G.B. with him.
17N.W. indicated that there was no door on her father's room and she could see him inside, sleeping with G.B. On at least four or five occasions, she observed her father sleeping naked in the bed with G.B. She was very concerned and spoke to him about it, but his response was that he liked having somebody snuggle up in his back, and that he did not like to sleep alone.
18N.W. also testified that she became aware of discussions that L.M. was having with a friend of his, Joan, whose daughter worked for the CAS. She testified that L.M. was trying to figure out a way to get custody of G.B., by saying that she was in danger living with her mother.
The Medical Evidence
19An agreed statement of facts was filed outlining the medical evidence. Among other things, it stated that a visual observation revealed that G.B.'s hymen was not present; her genitalia appeared "normal for her age" and did not suggest sexual activity at the time of the examination; and there were no visible injuries or signs of recent penetration.
The Evidence of L.M.
20L.M. testified in his own defence at trial and denied any sexual wrongdoing with G.B. He also denied threatening her or forcibly confining her. It was the defence position that the charges were the result of an elaborate fabrication by G.B., motivated by her mother's anger and G.B.'s own desire to get L.M.'s house for herself. Similarly, the defence contended that N.W. was fabricating her evidence because of her antipathy towards her father. [page262]
21Relying on L.M.'s denial and inconsistencies in G.B.'s evidence, the defence argued that the jury should reject her evidence as a lie.
22The jury returned a verdict in which they found the appellant guilty of one count of sexual assault, one count of sexual interference and one count of invitation to sexual touching. He was acquitted of the other charges.
Reasons for Judgment on Third Party Records Application
23At trial, L.M. brought an application for the production of G.B.'s third party CAS and counselling records. L.M. took the position that the records were necessary to assess G.B.'s ability to recall the events at issue and her general credibility.
24The trial judge dismissed the application on the basis that it did not satisfy the first stage of the test set out in s. 278.5 of the Criminal Code, R.S.C. 1985, c. C-46. Specifically, L.M. failed to establish that the records were likely relevant to an issue at trial. The trial judge concluded that the application was based on the hope that the material might contain a prior inconsistent statement of some kind. He found that this was speculative and tantamount to "a fishing expedition devoid of any permissible evidentiary basis". It was insufficient to establish that the records were necessary for full answer and defence.
Issues on Appeal
25The appellant appeals his conviction and sentence on the following grounds:
(1) the trial judge erred in dismissing the appellant's application for third party records;
(2) the verdicts were inconsistent. This ground of appeal was abandoned by counsel in oral argument;
(3) the trial judge's findings of fact at the sentencing stage were clearly inconsistent with the jury's verdict, resulting in a sentence that was exponentially higher than was warranted for the conduct for which the appellant was convicted.
Analysis
26I will address the issues in the following order:
(1) the third party records; and
(2) the sentence appeal. [page263]
(1) Third party records
(a) Governing principles
27The trial judge denied the application on the basis that the appellant had not satisfied the threshold "likely relevance" test.
28The production of third party records in sexual assault cases is governed by the statutory regime set out in ss. 278.1 to 278.91 of the Criminal Code, as well as the Supreme Court of Canada's interpretation in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68. The procedure incorporates a two-stage process:
(i) disclosure to the judge;
(ii) production to the accused.
29At the first stage, the accused must establish that the record sought is "likely relevant to an issue at trial", or to the "competence of a witness to testify", and that the "production of the record is necessary in the interests of justice": Criminal Code, s. 278.5(1).
30Compliance with s. 278.3(2) to (6) is mandatory in order for the judge to order production of the record for the court's review. The trial judge is required to consider the "salutory and deleterious effects" of production by balancing the right of the accused to make full answer and defence against the complainant's or witness' right to privacy and equality: Criminal Code, s. 278.5(2).
31The accused's right to make full answer and defence is a core principle of fundamental justice protected by s. 7 of the Canadian Charter of Rights and Freedoms. The complainant's or witness' right to privacy is within the ambit of s. 8 of the Charter. Both of these rights are "principles of fundamental justice", and are "informed by the equality rights" as defined within s. 15 of the Charter: Mills, at paras. 17, 62.
32In Mills, the Supreme Court noted, at para. 80, that the privacy interests, as protected by s. 8 of the Charter, may be expressed as an interest in being left alone by the state, which includes the ability to control the dissemination of private confidential information.
33The court in Mills further noted, at paras. 82-85, that privacy is essential to trust relationships, and that protecting therapeutic records protects the therapeutic relationships; protection of therapeutic relationships protects the mental integrity and, therefore, security of the individual. Therefore, in cases where a therapeutic relationship is threatened by the disclosure of private records, both security of the person and privacy are implicated. [page264]
34A balance must be struck between the privacy interest of the complainant or witness and the right to make full answer and defence. Striking the appropriate balance will not always result in production of the record. As noted by the majority of the court in Mills, at para. 94:
The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses. Rather, the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent. Most cases, however, will not be so clear, and in assessing applications for production, courts must determine the weight to be granted to the interests protected by privacy and full answer and defence in the particular circumstances of each case. Full answer and defence will be more centrally implicated where the information contained in a record is part of the case to meet or where its potential probative value is high. A complainant's privacy interest is very high where the confidential information contained in a record concerns the complainant's personal identity or where the confidentiality of the record is vital to protect a therapeutic relationship.
35Section 278.3(4) lists 11 "assertions" that are "not sufficient on their own" to establish the record is likely relevant to an issue at trial or to the competence of a witness to testify. They include the following:
the record relates to medical or psychiatric treatment, therapy or counselling that the complainant has received;
the record relates to the incident that is the subject matter of proceedings;
the record may disclose a prior inconsistent statement of the complainant;
the record may relate to the credibility of the complainant; and
the record may relate to the reliability of the testimony of the complainant merely because the complainant has received psychiatric treatment, therapy or counselling.
36The purpose of s. 278.3(4) is "to prevent speculative and unmeritorious requests for production", especially those based on "myths, stereotypes and generalized assumptions about sexual assault victims and classes of records": Mills, at paras. 118-19. [page265] The provision does not, however, entirely prevent an accused from relying on the enumerated factors as a basis for production. Rather, it simply prevents reliance on the bare assertion where there is no other evidence and the bare assertion stands on its own. In Mills, the court noted, at para. 120:
The purpose and wording of s. 278.3 does not prevent an accused from relying on the assertions set out in s. 278.3(4) where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance. The section requires only that the accused be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify.
[Citation omitted]
37The test for "likely relevance" in s. 278.5(1)(b) is higher than the standard for disclosure set out in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, which must be provided unless the material is "clearly irrelevant". In R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, the court defined the standard of likely relevance, at para. 22, as "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify". It is the O'Connor standard for "likely relevance" which was adopted in Mills. In O'Connor, at para. 22, the court indicated that "likely relevance" refers "not only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case". In Mills, at paras. 126-27, the court noted:
Section 278.5(1) requires the accused at the stage of production to a judge to demonstrate not only that the information is "likely relevant" but, in addition, that the production of the record "is necessary in the interests of justice". The first requirement takes up the unanimous view in O'Connor that the accused, to get production to the judge, must show that the record is "likely relevant". The additional requirement that production to the judge be "necessary in the interests of justice" encompasses (but is not confined to) the concern of the minority in O'Connor that even where likely relevance is shown, there should be room for the court to consider the rights and interests of all those affected by disclosure before documents are ordered disclosed to the court.
Section 278.5(1) is followed by s. 278.5(2) which gives substance to the requirement that trial judges consider the broad range of rights and interests affected before ordering disclosure to the court. Under this section, a trial judge is required to consider the salutary and deleterious effects of production to the court on the accused's right to make full answer and defence and on the rights to privacy and equality of the complainant or witness and any other person to whom the record relates. The section directs the trial judge to "take into account" a series of factors in deciding whether the document should be produced to the court: (a) the extent to which the record is necessary for the accused to make full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society's interest in encouraging the reporting of sexual offences; (g) society's interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process.
(b) Application of the governing principles
38In applying the foregoing principles to the case at bar, I am not satisfied that the trial judge erred in denying the appellant's third party records application. Section 278.3(4) provides some guidance to the trial judge in adjudicating the "likely relevance" issue. Section 278.3(4)(d) clearly states that one of the assertions which will not suffice on its own to establish the record is likely relevant is that the record may disclose a prior inconsistent statement of the complainant.
39The onus was on the appellant to establish that the record sought was likely relevant to an issue at trial. He failed to do so. The appellant was unable to establish any evidentiary foundation to satisfy the "likely relevant" onus. The trial judge had a wide discretion in applying the legal principles. The appellant was unable to point to anything other than the complainant's inconsistencies between her statement to the police and her preliminary hearing testimony.
40The appellant's argument for the production of the third party records is anchored on the basis that there were significant and material inconsistencies between the complainant's original videotaped statement and her testimony at the preliminary inquiry. In particular, the appellant states that the complainant's evidence changed drastically in relation to the following:
(1) her account of how the first sexual contact in the log house occurred (i.e., the appellant coming into the complainant's room, rather than her going into his);
(2) the complainant saying that the first time the appellant attempted intercourse was "maybe a week", or up to "three weekends" after the first sexual contact, and that intercourse occurred in the log house, rather than a year or so later when they moved to the brick house as stated in the police interview; and
(3) the complainant's description of the belt used to tie her up as being "rubbery" as opposed to having spikes on it. [page267]
41There were some inconsistencies in the evidence of the complainant. These inconsistencies, however, were not significant or material to the substance of the allegations. Furthermore, the appellant's counsel at trial had the opportunity to conduct a very thorough and extensive cross-examination of the complainant to address the inconsistencies head on.
42G.B. was an 11-year-old child when she gave her statement to the police and 12 years old when she testified at the preliminary inquiry. Minor testimonial inconsistencies in the evidence of children are not unusual. I agree with the respondent that while there were inconsistencies in the complainant's evidence, they related only to timing and venue issues, and not to the substance of the allegations.
43There was no expansion of the nature of the sexual activities from the police statement to the preliminary hearing. The substance of the allegations remained consistent. Furthermore, the trial judge did specifically make reference to the inconsistencies in her reasons for refusing the application. There is no evidentiary basis to suggest that the counselling records would provide any further information than was provided in the extensive cross-examination at the preliminary inquiry.
44This case is very similar to the factual situation that was before this court in the case of R. v. B. (W.) (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, [2000] O.J .No. 2184, 145 C.C.C. (3d) 449 (C.A.), where Doherty J.A. stated, at paras. 69-71:
There was also no evidence that the counselling process precipitated or contributed to D.S.D.'s decision to go to the police. The evidence was to the contrary. D.S.D. went to the police and gave them a statement some five months before she began counselling. Furthermore, there is no evidence that the counselling process played any role in reviving, refreshing or shaping the memory of D.S.D. Finally, there is no evidence that D.S.D. suffered from any emotional or mental problem which could have any impact on her reliability or veracity, and the nature of the allegations themselves did not suggest any such problems.
The appellant's position with respect to the likely relevance of the records must come down to this. The records contained statements made by D.S.D. that referred to the alleged abuse and to matters affecting her credibility. Anything said by D.S.D. about the abuse or about a matter which could affect her credibility passes the likely relevance threshold, even absent any suggestion that the statements differ from or add anything to the complainant's statement and testimony at the preliminary hearing.
If the likely relevance bar is that low, it serves no purpose where the records relate to counselling or treatment connected to allegations of sexual abuse. It is impossible to imagine that such records would not contain references to the alleged abuse or matters that could affect the credibility of the complainants' allegation of abuse. In my view, the mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters [page268] touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant's credibility.
45In the case at bar, the appellant was unable to show that the records contained any statements by the complainant to either the CAS personnel or the counsellor that touched on matters which were in any way potentially relevant to the complainant's credibility. Furthermore, there was no basis for concluding that the records contained any information which was not already available to the defence, would have any impeachment value, or which would otherwise affect the appellant's ability to make full answer and defence. As noted by Doherty J.A. at para. 72, in Batte:
To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O'Connor, between relevance for the purposes of determining the Crown's disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge.
Accordingly, the appeal as to the conviction is dismissed.
(2) Sentence appeal
46The second issue raised by the appellant in this appeal and argued in oral argument concerns whether the trial judge erred by making findings of fact on sentencing which were inconsistent with the jury's verdict. Additionally, the appellant submits that the sentence is harsh and excessive.
47In my view, the trial judge was very much aware of the correct legal principles and applied these principles to the post-verdict factual findings.
(a) The governing principles
48The appellant correctly identifies the applicable law as canvassed by the Supreme Court in the decisions R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, [1991] S.C.J. No. 57 and R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6. In Ferguson, at paras. 17-18, the court stated the law as follows:
Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 CanLII 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).
Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the [page269] relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)).
(b) Application of the governing principles
49The appellant argues on appeal, as he did through trial counsel at the post-verdict hearing, that his acquittal on the charges of forcible confinement and threatening death meant that the jury rejected the complainant's evidence about the sexual misconduct that occurred at the brick house. This argument was put succinctly by the trial judge as follows:
[T]he defence submits that on the facts of this case, the allegations of sexual intercourse and other serious sexual misconduct are so inextricably connected to the allegations of forcible confinement and threatening death that an acquittal on the latter two counts must mean that the jury had a reasonable doubt about whether sexual intercourse or other serious sexual misconduct had ever taken place.
50With respect to the first principle in Ferguson, as the trial judge correctly noted, it was open to the jury to reject none, some or all of the complainant's evidence: R. v. C. (B.), [2011] O.J. No. 4134, 2011 ONCA 604, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 519. Furthermore, the trial judge, in his reasons, explicitly accepted that the jury was not satisfied beyond a reasonable doubt of the forcible confinement and threatening death charges. He did not rely on these two offences nor did he consider the underlying allegations as an aggravating factor in his sentencing of the appellant.
51The trial judge found that the factual implications of the jury's verdict were unclear or ambiguous. Accordingly, he applied the second principle from Ferguson and did not attempt to follow the logical process of the jury, but instead made his own independent determination of the facts, consistent with the jury's verdict. In so doing, he was satisfied that implicit in the jury's conviction on all three sexual offences was a rejection of the defence position that the complainant fabricated her evidence of the sexual misconduct.
52The trial judge also found that the jury had no reasonable doubt about the complainant's evidence on the sexual relationship between her and the appellant. The trial judge had the benefit of seeing and hearing the evidence, including that of the complainant. He accepted that the complainant was assaulted in the truck, the log house and in the brick house. In my view, the trial judge's findings were all consistent with the jury's verdict.
53In my view, considering the nature of the offence and personal circumstances of the appellant, the sentence imposed was [page270] within the appropriate range. General deterrence and denunciation were the most important sentencing objectives in this case. A number of factors heightened the seriousness of the offences, including the age of the complainant as compared with that of the appellant; the nature of the trust relationship between the appellant and the young complainant and her family; and the duration and the intrusiveness of the sexual offences. Weighing these considerations, in my view, the trial judge imposed a fit sentence.
54Accordingly, leave to appeal the sentence is granted, but the appeal as to sentence is denied.
Appeal dismissed.
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