COURT OF APPEAL FOR ONTARIO

DATE: 20000811
DOCKET: C27578

RE: HER MAJESTY THE QUEEN (Respondent) – and – P. T. R. (Appellant)

BEFORE: FINLAYSON, GOUDGE AND FELDMAN JJ.A.

COUNSEL: Andrea E. E. Tuck-Jackson

For the appellant

Howard Leibovich

For the respondent

HEARD: August 8 and 9, 2000

On appeal from the conviction by Justice R.A. Blair dated February 28, 1997, and on appeal from the sentence imposed by Justice R.A. Blair on June 2, 1997.

E N D O R S E M E N T

[1] In this appeal the appellant argues first that the trial judge erred in admitting the Penthouse letter and then erred in his use of it. We agree that there was no basis upon which the Crown could have sought the admission of this letter when it did, as part of its case in chief. However, in our view, no prejudice to the appellant resulted from this. The case against him, based primarily on the evidence of the complainant and of the appellant’s gay partner, Mr. I., was a strong one. It was inevitable that the appellant would have to testify on his own behalf to answer it. At that point the letter could have been put to him in cross-examination. The absence of a clear objection by defence counsel to the tendering of the letter was probably a recognition of this inevitability. Once admitted, the letter was used by the trial judge not as the basis for propensity reasoning, but as part of a careful evaluation of the credibility of the appellant. In our view, the first ground of appeal fails.

[2] Secondly, the appellant argues that the trial judge erred in treating evidence of the appellant’s sexual activities as bad character evidence relevant to guilt. We disagree. The trial judge was expressly alive to the need to insure that the appellant not be tried or convicted on the basis of his sexual proclivities. While he did make reference to the appellant’s sexual activities it was in the context of his assessment of the appellant’s credibility and his conclusion that when it comes to matters in that realm the appellant might well not be able to distinguish between reality and fantasy. We see no sign that the trial judge used this evidence to engage in propensity based reasoning.

[3] Finally, the appellant argues that the trial judge permitted cross-examination of the appellant which was improper and unfair. We are not prepared to give effect to this ground of appeal. While the Crown ought not to have asked the appellant why Mr. I. went to the CAS and the police, this questioning followed an assertion by the appellant that Mr. I. must have known that the appellant’s story about the complainant was a fantasy. Moreover, the questioning was very limited and elicited no answers that were damaging to the appellant. This ground of appeal fails.

[4] The appeal must, therefore, be dismissed.

“G. Finlayson J.A.”

“S.T. Goudge J.A.

“K. Feldman J.A.”