COURT OF APPEAL FOR ONTARIO

DATE: 20000731

DOCKET: C34258

RE: HER MAJESTY THE QUEEN (Respondent) – and – C. M.

(Appellant)

BEFORE: ROSENBERG, MacPHERSON and SHARPE JJ.A.

COUNSEL: Paul Calarco, for the appellant

Thomas Galligan, for the respondent

HEARD: July 27, 2000

On appeal from the conviction imposed by The Honourable Mr.

Justice Maloney, sitting with a jury, dated February 15, 2000,

and from the sentence imposed by The Honourable Mr. Justice

Maloney dated February 15, 2000

E N D O R S E M E N T

[1] At the conclusion of argument in this appeal, we indicated

that, for reasons to follow, the appeal from conviction was

dismissed but the appeal from sentence was allowed and the

sentence reduced to time served.

THE CONVICTION APPEAL

The non-existent letter

[2] Approximately five years elapsed between the time of the

alleged offence and the trial. In reviewing the position of the

defence, the trial judge pointed out to the jury that it was a

position of the defence that, while the complainant may be honest

and credible, the issue was whether her evidence was reliable and

that “she may well believe after five years that this happened”.

The trial judge then told the jury that, in addition to the

complainant’s own testimony, there was the letter that she wrote

a year after the event to her best friend and the statement to

the investigating officer.

[3] The reference to a letter was an error. There was no such

letter and it became apparent during the objections to the charge

that there was some confusion with another case. In any event,

the trial judge immediately recalled the jury and told the jury

that there was no evidence of that letter and they should

disregard that reference in his charge. While it might have been

preferable for the trial judge to have been clearer as to the

origin of the mistake, we are satisfied that the appellant was

not prejudiced. There was a great deal of other evidence,

admitted without objection, that the complainant had told her

friend and others and finally the police what had happened

relatively soon after the event. The trial judge’s recharge was

adequate in the circumstances.

The charge on the elements of the offence

[4] The appellant argues that the trial judge did not give the

jury sufficient direction as to the meaning of position of trust

in s.153 of the Criminal Code. The trial judge reviewed at

considerable length the evidence to be considered on this issue

and, in particular, drew the jury’s attention to the age

difference and the nature of the relationship, which were the

important factors on the facts of this case. The trial judge at

certain points referred to the appellant as the complainant’s

“uncle”. This was not an entirely accurate description of the

family relationship but was consistent with some of the

complainant’s prior statements, which were put to her in cross-

examination by counsel for the appellant and he raised no

objection to these references in the charge to the jury. In the

particular circumstances of this case and given the real issues

in the case, the charge was adequate.

Comment on the failure to testify

[5] In reviewing the position of the defence, the trial judge

referred to the defence position that the appellant had the right

to remain silent, that there was no case to meet and the jury

should not draw any negative inference from the fact that he had

not testified. While this type of comment should be avoided, in

context it could not possibly have prejudiced the appellant.

Credit and reliability

[6] The appellant argues that the trial judge did not make it

clear that the issue in the case was not the sincerity of the

complainant, but the reliability of her evidence. We are

satisfied that the charge was adequate in the circumstances.

When the charge is considered as a whole, especially the trial

judge’s review of the evidence and the defence position, the jury

would clearly have understood that the reliability of the

complainant’s description of the events was the critical factor.

[7] Accordingly, the appeal from conviction is dismissed.

THE SENTENCE APPEAL

[8] The trial judge sentenced the appellant to one year

imprisonment and three years probation. The appellant had spent

nine and one-half months in pre-trial custody. Given the

appellant’s record and that he was on probation at the time, we

agree that it was open to the trial judge to impose a further

period of imprisonment. However, the trial judge erred in

principle in placing undue emphasis on the record. While the

appellant was certainly not entitled to any leniency, the

sentence imposed had to be proportionate to what actually

occurred. This was a relatively minor example of this offence.

In effect, the appellant touched the complainant from behind and

touched her hip or thigh. Both parties were fully clothed and

the touching was very brief. The context and the conduct was far

removed from cases such as R. v. Audet (1996), 106 C.C.C. (3d)

481 (S.C.C.).

[9] Accordingly, leave to appeal sentence is granted, the appeal

allowed and the sentence reduced to time served.

Signed: “M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”