DATE: 20001004

DOCKET: C32656

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– JAMES GARROD (Appellant)

BEFORE: MORDEN, CATZMAN and AUSTIN JJ.A.

COUNSEL: Steven L. Kovacs, for the appellant

Karen Shai, for the respondent

HEARD: September 28, 2000

On appeal from the conviction imposed by Justice William J. Morrison, sitting with a jury, dated April 16, 1999, and from the sentence imposed by Justice Morrison dated June 21, 1999.

E N D O R S E M E N T

[1] We shall deal first with the two grounds of appeal relating to submitted errors of the trial judge in his charge to the jury.

[2] The first submitted error is that the trial judge failed to give an adequate instruction with respect to that part of the address of crown counsel relating to the complainant D.’s allegations of sexual assault by three persons other than the appellant.

[3] The trial judge gave the jury a clear admonition that they must take nothing from the address of Crown counsel in this regard and that her remarks should have no bearing on the case. We are satisfied that this was an adequate instruction on the point. Defence counsel at trial had no objection to the charge in any respect.

[4] The second submitted error is that the trial judge’s instruction to the jury on the way in which they should treat the evidence of the youthful complainants was not required and unduly bolstered the credibility of the complainant D. The instruction in question was taken almost verbatim from the reasons of McLachlin J. in R. v. W.(R.) (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.) at page 144. We are satisfied that that instruction was entirely appropriate to the facts of the present case.

[5] We turn now to the appellant’s principal submission with respect to conviction, namely, that the verdicts were unreasonable. We are satisfied that there was evidence on which a properly instructed jury acting reasonably could convict the appellant on both counts. It is true that the evidence of the complainant D. contained many internal inconsistencies and that she acknowledged on several occasions that earlier statements she had given were untrue in a number of respects. There was, however, evidence explaining the various statements made by her which, if accepted by the jury, would enable them reasonably to reach the verdicts they did.

[6] The trial judge made it clear to the jury that the central issue was credibility. He carefully reviewed the evidence in his instructions, including the evidence of the contradictions in her testimony. In the final analysis, it was the function of the jury to accept, or not to accept, her explanations. In the circumstances, we would not be justified in interfering with the jury’s decision.

[7] We turn now to the question of sentence. The principal submission is that the trial judge, in sentencing the appellant, wrongly accepted the most aggravating set of circumstances disclosed in the evidence. It was the duty of the trial judge in the circumstances of this case to make the findings which would form the basis of the sentences to be imposed. The trial judge instructed himself that his findings should be based on his satisfaction beyond a reasonable doubt and, at the invitation of counsel, made a determination of what evidence he accepted beyond a reasonable doubt as going to the proof of the sexual acts in the two counts. We are not persuaded that he erred in his factual determination. Further, although it may not be necessary to make this observation, we do not think it can be said that he accepted the most aggravating set of circumstances as constituting the underlying facts. The sentences imposed on the basis of the facts found by him were appropriate and reflect no error.

[8] Accordingly, the appeal against conviction is dismissed. Leave to appeal against sentence is granted, but the appeal against sentence is dismissed.

Signed: “J.W. Morden J.A.”

“M.A. Catzman J.A.”

“Austin J.A.”