WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2018-01-25

Docket: C62679

Panel: Laskin and Pepall JJ.A. and Gans J. (ad hoc)

Parties

Between

Her Majesty the Queen

Respondent

and

Roger William Allan Pindus

Appellant

Counsel

Matthew Gourlay and Kenneth Grad, for the appellant

Rebecca De Filippis, for the respondent

Hearing

Heard: November 28, 2017

On appeal from: the convictions entered on June 27, 2016 and the sentence imposed on September 23, 2016 by Justice John A. Desotti of the Superior Court of Justice, sitting without a jury.

Decision

Laskin J.A.:

A. Overview

[1] The appellant, Roger Pindus, appeals his convictions for six counts of sexual assault and two counts of assault of the complainant, C.R., and his sentence of six years in the penitentiary.

[2] C.R. alleged that Pindus sexually and physically assaulted her over a two year period, between 2005 and 2006. When the assaults began, C.R. was 14 years old; Pindus was 44. C.R. disclosed the assaults in 2013 when she was 22.

[3] Pindus was tried in 2016 before a judge alone on 14 counts of sexual assault, two counts of assault, and one count of unlawful confinement. At the time the sexual assaults were alleged to have occurred, the age of consent in Canada was 14, not 16 as it is now. Thus, to convict Pindus, the Crown had to prove lack of consent beyond a reasonable doubt.

[4] C.R. gave evidence that, for nearly two years, Pindus sexually and physically abused her numerous times. The abuse included many instances of forced oral sex and sexual intercourse. She testified that sometimes she would resist Pindus's advances by pulling away and telling him to stop. Other times she would acquiesce because she felt there was no point in saying no.

[5] Pindus testified and denied any sexual contact at all with C.R. He claimed that C.R. was a love-struck teenager, who fabricated her allegations because she was infatuated with him. But Pindus took the alternate position that any sexual activity with C.R. was consensual. C.R. had kept a diary in which she described her sexual encounters with Pindus. Defence counsel cross-examined C.R. on many of her diary entries to try to show that she consented to sex with Pindus.

[6] The trial judge gave lengthy oral reasons. He acquitted Pindus on 8 of the 14 counts of sexual assault and the one count of unlawful confinement. He held at para. 52 that "because of the complainant's silence or acquiescence", he could not conclude beyond a reasonable doubt that these allegations of sexual assault were not consensual. He convicted Pindus on the other six counts of sexual assault and on the two counts of assault.

[7] On his conviction appeal, Pindus accepts that the trial judge was entitled to find that sex took place and thus to reject Pindus's primary defence that he did not engage in sexual activity with C.R. His appeal instead focuses on his alternate position at trial, the question of consent. He raises three issues:

1. Did the trial judge misapply the burden of proof?
2. Did the trial judge misapprehend the significance of C.R.'s diary?
3. Did the trial judge err by assessing C.R.'s testimony according to the standard applicable to young persons?

[8] On his sentence appeal, Pindus submits that the trial judge made two errors in principle justifying this court's intervention: he relied on inadmissible portions of C.R.'s victim impact statement; and he failed to apply the principle of parity.

[9] For the brief reasons that follow I would dismiss both the conviction and the sentence appeals.

B. Additional Background

[10] C.R. was born in 1991, and grew up in Sarnia, where all the alleged incidents occurred. She met Pindus through her friend S.V. S.V. lived with her mother and her uncle, Joseph Lamore. Lamore and Pindus were friends, and Pindus often went to S.V.'s house to see him.

[11] C.R. testified that she first met Pindus in the summer of 2005. He was introduced to her by his nickname "Dog". Pindus quickly took notice of her. He offered her rides on his motorcycle and told her to call him on his cellphone. He told her that she was pretty.

[12] About three weeks after they met, Pindus took C.R. on a bike ride, as he had done before. But this time he took her to his house. They went inside to his living room and sat on the couch. He asked C.R. if he could touch her breasts. She said no. Still, he lifted up her shirt and fondled her breasts. He then undid her pants, pulled back her underwear, and put his fingers in her vagina. He moved his fingers around "a couple of times", but stopped when he realized she was on her period.

[13] C.R. then stood up and said she wanted to go. She tried to walk away. Pindus grabbed her arm, pushed her down onto a chair, and held her there while he undid his pants. He exposed his erect penis, and told C.R. he wanted her to put his penis in her mouth. She said she didn't want him to. But he pulled her toward him so that his penis was touching her lips. She said he was so persistent that she opened her mouth. He put his penis inside and told her to "suck it". She pushed him away and said she wanted to leave. He took her back to S.V.'s house.

[14] From this first incident, Pindus's abuse of C.R. escalated. It took place at Pindus's house, S.V.'s house, and on a few occasions at the house of a classmate of C.R. and S.V.

[15] During the time Pindus was sexually assaulting C.R., Lamore was also sexually assaulting her. In April 2007, she became pregnant with Lamore's child and later that year gave birth.

[16] Eventually C.R. underwent counselling, which she said helped her to understand what had occurred. In April 2013, she disclosed what Pindus and Lamore had done to her.

C. The Conviction Appeal

(1) Did the trial judge misapply the burden of proof?

[17] Pindus acknowledges that the trial judge correctly stated the Crown's burden of proof beyond a reasonable doubt, but argues that he misapplied it. Pindus contends that on the issue of consent, the trial judge wrongly took an either/or approach to the assessment of the evidence: either Pindus was lying or C.R. was lying. He correctly points out that Pindus's evidence could be rejected in its entirety, and he could still be acquitted on all counts if on all the evidence lack of consent had not been made out beyond a reasonable doubt: R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-758. In essence, Pindus submits that the trial judge did not apply the reasonable doubt standard to the question of consent, contrary to W.(D.). In support of his submission, he relies on this court's decision in R. v. J.W., 2014 ONCA 322, 316 O.A.C. 395. I disagree with Pindus's submission.

[18] The trial judge considered the credibility of both Pindus and C.R. He found at para. 47 that, except on one minor and immaterial matter, Pindus's testimony "was unremarkable and did not display any significant shortcomings".

[19] But the trial judge was favourably impressed with C.R.'s evidence and "her composure 'under fire'" (para. 43). He acknowledged the inconsistencies in her evidence but found that she did not fabricate or even exaggerate her accounts of Pindus's sexual assaults. He concluded at para. 82 that "she gave her evidence in a most detailed and convincing manner even with some inconsistencies with respect to dates, clothing and locations." And he accepted that C.R. had numerous sexual encounters with Pindus, some of which were non-consensual. He then rejected Pindus's denials.

[20] Had the trial judge stopped there with these findings, Pindus might have had a legitimate complaint. A general acceptance of a complainant's evidence and a rejection of an accused evidence does not exhaust the trial judge's duty to apply the standard of proof beyond a reasonable doubt. A "reasonable doubt can survive a finding that the complainant is credible": J.W., at para. 26.

[21] But the trial judge was acutely aware of the reasonable doubt standard, and his reasons for judgment show that he applied it. He repeatedly referred to the reasonable doubt standard throughout his reasons, and expressly discussed the W.D. analysis. Perhaps most compelling, he acquitted Pindus on eight of the counts of sexual assault because C.R.'s "silence or acquiescence" on these counts left the trial judge with a reasonable doubt on each one. As the Crown points out, in acquitting Pindus on these counts, the trial judge applied a more rigorous standard on the issue of consent that Pindus was entitled to. But for this ground of appeal, the important point about the acquittals is that they demonstrate the trial judge did not misapply the burden of proof.

[22] Also, in closing submissions, the trial judge commented to the Crown counsel that he would have to "wrestle with" whether the Crown had satisfied him beyond a reasonable doubt:

The Court: … at the end of the day, I mean, that is what we really are talking about here, and whether or not was any compulsion on the part of the accused with respect to that, if I reject his evidence entirely.

Ms. Stoner: Yes.

The Court: We still have to do the W.(D). analysis…

Ms. Stoner: Yes

The Court: … as Mr. Marley points out. And his position is even if I get to denying the first prong of W.(D). and I am prepared to reject to the second prong, is there sufficient evidence on the issue of reliability on the third prong, does the Crown satisfy me beyond a reasonable doubt. So I have got to wrestle with that. [Emphasis added.]

[23] Then, on each count, the trial judge considered whether C.R.'s evidence proved a lack of consent beyond a reasonable doubt.

[24] Overall, the trial judge was faithful to this court's decision in R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.). He rejected Pindus's evidence and convicted him based on a considered and reasoned acceptance beyond a reasonable doubt of C.R.'s evidence. See also: R. v. R.D., 2016 ONCA 574, 30 C.R. (7th) 373.

[25] This court's decision in J.W., on which Pindus relies, is a different case and does not assist him. In J.W., the trial judge committed the very error Pindus relies on. He approached the evidence of the complainant and the accused in a sexual assault case on an either/or basis. He convicted the accused in that case because, even though the accused's evidence was not shaken, the trial judge "preferred" the complainant's version and was "convinced" by it. But he failed to consider whether the evidence as a whole raised a reasonable doubt about the accused's guilt or whether the Crown had proved the case against the accused beyond a reasonable doubt. The trial judge in J.W. erred by failing to apply the reasonable doubt standard, which is an essential component of Doherty J.A.'s reasons in J.J.R.D. The trial judge in this case did not commit that error. I would not give effect to this ground of appeal.

(2) Did the trial judge misapprehend the significance of C.R.'s diary?

[26] C.R. kept a contemporaneous diary in which she described her sexual encounters with Pindus. Although Pindus's main position at trial was a denial of sexual contact altogether, his counsel used the diary to cross-examine C.R. on the question of consent. Through his cross-examination, he tried to show that in her diary, C.R. described consensual sex with Pindus, contrary to her evidence at trial.

[27] Pindus submits that the trial judge cannot convict him without resolving this "contradiction" between C.R.'s diary entries and her evidence at trial. He contends that the trial judge's apparent resolution of the contradiction cannot support the convictions because it reflected a misapprehension of C.R.'s trial evidence.

[28] The trial judge concluded at para. 83 that, in her diary, C.R. "did not intend to convey what she felt but was describing what had happened through the eyes of an inexperienced, troubled and needy 14 year old teenager." Yet at trial, C.R. said in response to defence counsel's cross-examination: "[I]f that's what I'm saying that's how I felt at the time." Pindus contends that the trial judge conclusion – that in her diary C.R. did not mean to convey her true feelings – cannot be squared with her evidence at trial.

[29] I do not accept Pindus's contention, as I see no contradiction between C.R.'s diary entries and her evidence at trial. I make three points in support of my conclusion.

[30] First, as I read the diary entries, they did not describe consensual sexual encounters; they merely describe sexual encounters. Also, C.R. repeatedly explained that her diary did not include all the details of Pindus's assaults, and that her age at the time accounted for any misleading language. The trial judge accepted her explanation, as he was entitled to do.

[31] Second, C.R.'s answer at trial, "if that's what I'm saying [in the diary] that's how I felt at the time", was not an answer to questions about whether her sexual relationship with Pindus was consensual. It was an answer to questions about whether she was in love with Pindus. Certainly for a 14 year old having sex with a 44 year old, feelings of love cannot automatically be equated with consensual sex.

[32] Third, when asked whether her diary described consensual sex with Pindus, C.R. repeatedly denied that it did. For example, when testifying at trial about one of her entries where she wrote she had "sucked [Pindus's] dick", she said: "I didn't write my feelings. I just wrote down what happened." The trial judge was entitled to accept this evidence and to find that the description of the sexual encounters in C.R.'s diary did not undermine her trial testimony about her lack of consent.

[33] I would not give effect to this ground of appeal.

(3) Did the trial judge err by assessing C.R.'s testimony according to the standard applicable to young persons?

[34] C.R. was 25 when she testified about the events that occurred when she was 14 and 15 years old. Nonetheless the trial judge was obligated to assess her evidence according to her age when she testified, not her age when the events she was testifying about it occurred. In other words, the principle is the following: when adult witnesses testify about events that occurred when they were a child, their evidence should be assessed by the criteria applicable to adult witnesses, not by the somewhat relaxed criteria applicable to child witnesses. See: Kendall v. R., [1967] S.C.R. 469, at pp. 473-474; and R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 11 and 25.

[35] Pindus submits that the trial judge's reasons show that he violated this principle when he assessed C.R.'s evidence. His submission rests on a single reference in the trial judge's reasons to C.R. as a "young person". In commenting on the reliability of C.R.'s evidence, the trial judge said at para. 56:

With respect to the issue of reliability, the following passage by the complainant, C.R. in cross-examination perhaps best characterizes some of the frailties that exist when a young person testifies in sexual assault trials …:

I didn't remember saying those things because it is hard to tell a stranger all of those things and when you're under pressure and uncomfortable it's normal to forget or not say it at all when you think that you have.

[36] I do not accept that this single reference to "young person" shows that the trial judge applied an incorrect standard for assessing C.R.'s evidence. The mere mention of "young person" standing alone does not reflect the application of a less rigorous standard. Pindus has not pointed to any aspect of the reasons suggesting the trial judge applied a lesser standard to C.R.'s evidence.

[37] As the trial judge observed, there were inconsistencies in C.R.'s evidence. But generally these inconsistencies related to peripheral matters, such as timing and sequence. These minor discrepancies could be expected. Also, when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory have to be considered in the context of the age of the witness at the time of the events. Here, the trial judge accepted C.R.'s explanation that any inconsistencies in her evidence and any inability to remember certain things were not the result of dishonesty. They were the result of the passage of time and the troubling nature of what C.R. had to testify about.

[38] I decline to give effect to this ground of appeal. I would therefore dismiss Pindus's conviction appeal.

D. The Sentence Appeal

[39] At trial, the Crown asked for a sentence of eight to nine years; the defence sought a sentence of two to three years. The trial judge sentenced Pindus to six years' incarceration, less 33 days for pre-sentence custody. He made the usual ancillary orders.

[40] As has been said many times, sentences imposed by trial judges are entitled to significant deference on appeal. An appellate court may interfere if the trial judge errs in principle but only if the error has an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[41] Here, Pindus submits that the trial judge committed two errors in principle justifying our intervention. First, he relied on references in C.R.'s victim impact statement in which she said she suffered from Post-Traumatic Stress Disorder ("PTSD"), even though the Crown did not put forward any expert evidence to support this diagnosis or to show her PTSD was connected to Pindus's conduct. Second, the trial judge failed to apply the principle of parity set out in s. 718.2(b) of the Criminal Code, R.S.C. 1985, c. C-46, and instead imposed a sentence twice the length of the sentence imposed on Lamore, which was three years. I would not give effect to either branch of Pindus's submission.

[42] On the first branch, the trial judge did find C.R.'s victim impact statement to be "compelling, poignant, heartfelt, disturbing and reflected the significant trauma these sexual encounters occasioned on the physical and mental health of this young person." He itemized eight excerpts from her statement. In one of the excerpts she is quoted as saying: "I have learned through therapy that I have [PTSD]."

[43] Even accepting Pindus's submission that this excerpt was improperly admitted in the absence of an expert diagnosis to support it, the trial judge's reasons do not suggest that C.R.'s description of what she learned in her therapy sessions had any impact on the sentence the trial judge imposed.

[44] On the second branch of Pindus's submission he points out that Lamore was convicted of several counts of sexual assault and assaults on C.R. and that he even fathered a child with her, yet received a sentence of only three years. Thus Pindus contends his six year sentence violated the principle of parity. I disagree.

[45] Pindus was not entitled to the same sentence as Lamore simply because they both sexually assaulted the same victim. The principle of parity does not preclude disparity where circumstances warrant it. Pindus and Lamore were sentenced in different circumstances. One significant differentiating circumstances was that Lamore pleaded guilty and thus had the benefit of this mitigating consideration. Even so, if anything his sentence was lenient and does not justify reducing Pindus's sentence.

[46] Moreover the overriding principle of sentencing is proportionality: the more serious the crime and its consequences, and the more morally blameworthy the offender, the more severe the sentence: Lacasse, at para. 12. For Pindus, the principle of proportionality entirely justified the fitness of a six year sentence. I can do no better than quote the concluding words of the Crown's factum:

Sexual offences against children and teenagers demand lengthy penitentiary sentences. The appellant's trial counsel acknowledged as much. The facts of the appellant's convictions were egregious, and the aggravating factors numerous. The appellant engaged in an escalating pattern of protracted sexual and psychological abuse of a young and vulnerable victim almost 30 years his junior. The assaults were violent and demeaning, and the impact on the victim was devastating and lasting.

[47] Although I would grant leave to appeal sentence, I would dismiss the sentence appeal.

E. Conclusion

[48] I would dismiss Pindus's conviction appeal. Although I would grant leave to appeal sentence, I would also dismiss his sentence appeal.

Released: January 25, 2018

"John Laskin J.A."

"I agree. S.E. Pepall J.A."

"I agree. Arthur Gans J."