COURT OF APPEAL FOR ONTARIO

DATE: 20001017

DOCKET:C29919

FINLAYSON, GOUDGE AND FELDMAN JJ.A.

BETWEEN: )

) Richard Litkowski

HER MAJESTY THE QUEEN ) for the appellant

(Respondent) )

and ) Amy Alyea

) for the respondent

J. L. )

(Appellant) )

) Heard: August 9, 2000

On appeal from the convictions imposed by Justice Claire Marchand dated January 22, 1997 and from the sentence imposed by Justice Marchand dated March 25, 1997.

GOUDGE J.A.:

[1] The appellant was convicted in 1997 of one count of gross indecency and one count of indecent assault in relation to each of two of his sisters. Beginning when his sisters, M. and D., were each approximately 5 years old, he made numerous demands upon them to masturbate him and perform oral sex on him. The sexual abuse occurred from 1967 to 1978. As a result of an incident in 1977 in which the appellant attacked D. in a car, the appellant was also convicted of one count of common assault. A third sister, B., gave similar fact evidence in terms of the oral sex she was forced to perform on the appellant up until she was ten years old.

[2] The appellant, who was sentenced to 44 months concurrent on each sexual offence and 2 months concurrent on the common assault, appeals conviction and sentence.

[3] For the reasons that follow I would dismiss both the appeal from conviction and the sentence appeal.

[4] The appellant was convicted following a two and one-half day trial before Marchand J. sitting alone. The reasons for judgment were delivered shortly after the close of the trial and cover some eight pages.

[5] There is no doubt that in those reasons the trial judge finds that the appellant is a very violent and vindictive man. Indeed, the first ground of appeal is that this finding is unreasonable and is based on a misapprehension of the evidence.

[6] I disagree. In my view, this is a conclusion which the trial judge could reasonably have reached on this record. He rested his conclusion on three findings, each of which is, in my view, sustainable on the evidence before him.

[7] First, he found that the appellant was so unmanageable as a youth that his parents had to send him to boys’ schools or foster homes in order to instil some amount of discipline into him. This finding was open to the trial judge given the following evidence from the appellant:

Q. And why were you in a foster home or a boys’ school from ’67 to ’69?

A. Because I was always beat up at school and I wouldn’t go to school, so it was under truancy so they sent me to school.

Q. You were always beat up at school?

A. Yes.

Q. And you wouldn’t go to school and so therefore you were sent to a boys’ school in Cobourg?

A. And a foster home, yeah, because my parents couldn’t control me.

Q. Oh I see, okay. So it was the lack of control that your parents had over you that resulted in you ending up at this boys’ school in Cobourg?

A. No, it’s because of my fear of going to school.

Q. Well I thought you just said that, so that’s why I repeated it for confirmation. Are you changing that?

A. Well no, okay, leave it at that.

Q. Do you agree with me then?

A. Yeah, okay.

[8] Second, the trial judge found confirmation of the appellant’s violent nature in his uninvited visit to his sister’s home to repossess a television set. The sister had testified that the appellant had entered her home uninvited and had “… physically threatened to beat the shit out of me if I didn’t give him back the TV.”

[9] Third, the trial judge relied on the letters which were introduced in evidence funding them to contain real threats by a vindictive man. The appellant admitted that one of these letters was a pretty nasty attempt to collect on outstanding bills. It contained the following PS:

“May you mend the errors of your way so you may once again see the next sunrise.”

[10] Hence, I conclude that the trial judge’s characterization of the appellant was reasonably grounded in the evidence and was not based on a misapprehension of it. This evidence of bad character was tendered as part of the narrative and elicited no objection from defence counsel. It was admissible despite its prejudicial effect because it helped explain why the abuse was permitted to continue for some time without the victims complaining to anyone else. The sisters had testified that they were terrorized and lived in constant fear, with parents who refused or were unable to interfere. See R. v. B. (F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 (S.C.C.) at 136-8 per Iacobucci J.

[11] Moreover, I do not agree that the trial judge used his characterization of the appellant as the foundation of the conviction. Indeed, in his reasons for judgment the trial judge was expressly conscious that evidence of the appellant’s violent nature could not be used to prove his guilt.

[12] Rather, the trial judge correctly described the main question before him as one of credibility. This was not a case like R. v. G.(G.) (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.) where there were serious internal inconsistencies in the complainant’s own testimony and significant contradictory evidence from a number of defence witnesses which required address by the trial judge. Here there was substantially similar testimony from all of the sisters in terms of the modus operandi of the sexual abuse and the appellant’s primary defence was his own denial and his assertion that his sisters had conspired to fabricate their evidence.

[13] In finding the charges to be proven beyond a reasonable doubt the trial judge relied strongly, but far from exclusively, on his assessment of the demeanour of both the witnesses for the Crown and the appellant.

[14] The trial judge also addressed the reliability of the sisters’ evidence and gave reasons for accepting their powers of recollection as being satisfactory.

[15] The trial judge went on to give detailed consideration to the appellant’s theory of conspiracy and provided his reasons for rejecting it.

[16] Finally, in assessing the appellant’s testimony, the trial judge found him to be, if not capable of lying, capable of contradicting himself at least if it suited his convenience. In coming to this conclusion the trial judge correctly referred to the appellant’s evidence in chief that when he went to this sister’s home to remove the television set he threatened to trash the place and was quite capable of doing so because he was really angry. The trial judge then had the appellant saying in cross-examination that he was not likely able to do that because his sister would likely have been able to stop him. While this misstated the appellant’s evidence, it was not significant in my view. On cross-examination the appellant did clearly back away from his damaging admission, saying now that he did not know if he was capable of carrying out his threat. Thus, there was a reasonable evidentiary basis for the trial judge’s conclusion that the appellant was capable of contradicting himself if it served his purpose.

[17] Hence, the reasons of the trial judge set out a proper basis for his determination of the central question of credibility. While he did not advert to all of the evidence that might bear on this issue there is no requirement that he do so. See R. v. Burns (1994), 1994 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.).

[18] In summary, therefore, while there is no doubt that the trial judge empathized with the emotional turmoil of the three young women and found the appellant to have a cold and violent nature, he did not convict the appellant on this basis. Rather, for the reasons I have referred to, he found the Crown’s case proven beyond a reasonable doubt. He did not err in doing so.

[19] The appellant’s final argument on the conviction appeal is that the Crown engaged in improper cross-examination by asking the appellant to explain why his sisters would come forward and falsely accuse him.

[20] The Crown properly concedes that these questions were improper, but argues that in the context of the full cross-examination and the entire trial this does not constitute a reversible error.

[21] I agree. These questions represented only a very small portion of the cross-examination of the appellant. They were not objected to by defence counsel. Further, in dealing with the defence of conspired fabrication the trial judge approached the matter from the perspective of the sisters’ evidence rather than the appellant’s responses to these questions. Thus, these questions, while improper, caused minimal prejudice in the circumstances and are not a basis for setting aside the conviction.

[22] I would, therefore, dismiss the conviction appeal.

[23] The appellant was sentenced to 44 months in jail. He argues that a term of this length is disproportionate to the overall circumstances of the offences and the offender.

[24] I cannot agree that this sentence is beyond a reasonable range given the circumstances of this case. The sexual abuse began when the victims were very young and continued frequently over some ten years. They involved an older brother forcing himself on vulnerable younger sisters. In many of the incidents some significant degree of physical force and threats of harm accompanied the sexual assaults. The impact on the victims has been profound and is ongoing.

[25] While I would, therefore, grant leave to appeal from sentence, I would dismiss that appeal.

Released: October 17, 2000 “GDF” “S.T. Goudge J.A.”

“I agree G.D. Finlayson J.A.”

“I agree K. Feldman J.A.”