COURT OF APPEAL FOR ONTARIO

DATE: 20001011

DOCKETS: C34234

C33013

RE: HER MAJESTY THE QUEEN (Respondent) – and – D. W. C. (Applicant/Appellant)

BEFORE: WEILER, ROSENBERG and SHARPE JJ.A.

COUNSEL: Susan Kyle, for the appellant

Delmar Doucette, for the respondent

HEARD: October 5, 2000

The appellant appeals against his convictions imposed by Justice Nicholson D. McRae dated May 19, 1999.

The Crown appeals against the sentence imposed by Justice McRae dated September 23, 1999.

E N D O R S E M E N T

[1] The accused was charged with three counts of sexual assault and one count of sexual exploitation. He was tried before a judge and jury and was found guilty as charged. He received a sentence of two years less a day, to be served conditionally. The accused appeals his conviction. The Crown appeals the sentence as being unfit.

[2] The accused submits that three errors were committed by Crown counsel in cross-examining defence witnesses and that the cumulative effect of the errors was to deprive the accused of a fair trial.

[1] The first error alleged arose when Crown counsel cross-examined the accused on the failure of defence counsel to question the complainant in accordance with the rule in Brown v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.C.). The accused testified that he knew about the complainant’s allegations about two hours prior to the police coming to his home to arrest him because of a conversation that his wife had had with the complainant. Crown counsel put to the accused that defence counsel had not asked the complainant about the conversation. No objection was taken to the question at the time. The significance of the question had to do with the fact that after the complainant testified, the arresting officer gave evidence that when he came to arrest the him, the accused denied any sexual impropriety with the complainant before the officer told him the charge. Crown counsel’s question was unfair to the accused since it suggested that the accused was responsible for the tactical decisions of defence counsel: R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 134 C.C.C. (3d) 131 (Ont. C.A.) at 142. Moreover, defence counsel would have had little reason to cross-examine the complainant on what she said to the accused’s wife until the police officer gave evidence.

[2] We are not, however, persuaded that this improper cross-examination prejudiced the accused’s right to a fair trial. While the police officer’s evidence of the accused’s conduct might in some circumstances have raised an issue respecting after-the-fact conduct, no such issue appears to have been raised at trial and the charge to the jury made no mention of this. In the end, the fact that the accused knew about the allegations before his arrest does not appear to have been a significant issue.

[3] The second alleged error is that the Crown improperly goaded the accused into saying the complainant had a specific animus against him and this should have been left to submissions of counsel. The accused’s submits that the trial judge’s charge on this point made the error worse and undermined his position. Having regard to the position of the defence, namely that the complainant had fabricated her allegation of sexual assault because the accused gave her advice concerning her relationship with her male cousin that she resented, the cross-examination was not improper. We are also of the view, contrary to the submissions of the accused, that the charge to the jury on this issue was fair and would have remedied any prejudice to the accused.

[4] The third alleged error is that in a question to the accused, Crown counsel misstated the evidence of a prior witness thereby causing the defence to object. It is submitted that this caused prejudice to the accused because defence counsel was forced to rise to his feet shortly after making another objection thereby leaving the jury with the impression the accused could not withstand cross-examination. In our opinion, the fact that defence counsel made a series of objections did not cause any prejudice to the accused.

[5] To conclude, the impugned cross-examination did not prejudice the accused’s right to a fair trial.

[6] We did not call upon the Crown to respond to the grounds of appeal relating to the elements of the offence of sexual assault and sexual exploitation as we were of the view that the charge to the jury was adequate in the circumstances.

[7] We would therefore dismiss the appeal from conviction.

Sentence Appeal

[8] In our view, the trial judge erred in principle in imposing a conditional sentence. The trial judge’s reasons demonstrate that he misapprehended the evidence and thus failed to appreciate the seriousness of the offence and the importance of denunciation. The offences involved repeated sexual assaults upon a vulnerable young girl, culminating in an act of sexual intercourse when the complainant was just a few weeks past her 14^th birth date. The trial judge minimized the seriousness of the offence because he found that the complainant consented and that the various acts amounted to criminal conduct only because of the provisions of s. 273.1(2)(c) of the Criminal Code. Even allowing for the undoubted advantage enjoyed by the trial judge in having presided at the jury trial this is not a reasonable reading of the record. While on some occasions the accused stopped when the complainant asked him to desist she also testified that on at least some occasions the sexual conduct persisted even when she said “no”. On other occasions, the complainant was silent and the accused nevertheless persisted in circumstances where it could not reasonably be said that the complainant consented: see R. v. Ewanchuk (1999), 1999 CanLII 711 (SCC), 131 C.C.C. (3d) 481 (S.C.C.) at 484. The seriousness of the offences was further aggravated by the fact that the accused was in a position of trust towards the complainant, his niece, who was a guest in his home at the time of some of the offences.

[9] The act of intercourse was particularly serious. The complainant was asked to baby sit an infant at a home near the accused’s house. The accused took her to the babysitting job and after the infant’s mother left, the accused removed the complainant’s clothing and had intercourse with her in the presence of the child. The complainant just lay there. She was afraid to do anything because she did not want to scare the child.

[10] Not surprisingly, the offences have had a profound impact upon the complainant and her family. She and her family have found it necessary to move to another city and to sever relations with part of the family. She has lost the companionship of a favourite aunt and her cousins. Her self-esteem has been undermined and she feels as though her teenage years have been destroyed.

[11] The difficulty for this court is that the accused has now served one year of the conditional sentence under strict conditions including a form of house arrest. Fresh evidence adduced on the appeal, with the Crown’s consent, shows that the conditional sentence has had a serious impact upon the accused and his family, particularly his young children. The accused has continued to provide for his family but he has otherwise been prevented from participating in most normal activities with his children and other relatives and friends. Evidence from the accused’s physician shows that the stress from the conditions of the sentence has also affected the accused’s health. The probation officer supervising the conditional sentence confirms that the sentence has greatly affected the accused. The probation officer also indicates that the accused “is one of the most cooperative persons I have supervised in my 17 years of service”.

[12] The fresh evidence demonstrates the truth of the comments made by Lamer C.J.C. in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at 468 that a conditional sentence with sufficiently restrictive conditions is also a punitive sanction that is capable of achieving objectives of denunciation and deterrence.

[13] Therefore, while we are of the view that the trial judge should not have imposed a conditional sentence, having regard to the significant punishment already meted out, the circumstances of the accused and the manner in which he has served his sentence, it would not be in the interests of justice to now incarcerate the accused, over a year after the sentence was imposed and almost three years after he was first arrested.

[14] In reaching this conclusion we have also taken into account that the accused has completed the community service portion of the sentence, has complied with all the other terms of the sentence and has indicated his willingness to attend at a sexual behaviour clinic.

[15] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

Signed: “Karen M. Weiler J.A.”

“M. Rosenberg J.A.”

“Robert J. Sharpe J.A.”