COURT OF APPEAL FOR ONTARIO

DATE: 20001208

DOCKET: C24943

RE: HER MAJESTY THE QUEEN (Respondent) v. T. H. (Appellant)

BEFORE: FINLAYSON, LABROSSE and FELDMAN JJ.A.

COUNSEL: Paul Slocombe,

for the appellant

Shawn Porter,

for the respondent

HEARD: December 4, 2000

On appeal from his conviction by Justice John F. McGarry, sitting with a jury, on March 1, 1996 and from the sentence imposed on March 26, 1996

E N D O R S E M E N T

[1] The appellant was charged with sexual offences in relation to his daughter and his two stepdaughters. He was tried by a court composed of a judge and jury. He was acquitted of having sexually assaulted his daughter, but was convicted of the sexual offences involving his two stepdaughters. He was sentenced to imprisonment for nine years. He appeals both his conviction and the sentence imposed.

[2] The offences were alleged to have occurred between January 1, 1966 and October 31, 1969, when the stepdaughters were between four and nine years of age. They disclosed numerous incidents of various kinds of sexual assault including rape and physical abuse, which took place in the homes in which the appellant resided with his stepdaughters and their mother. Similar fact evidence was called with respect to sexual assaults of another young girl that occurred while the appellant lived with her mother.

[3] The appellant’s trial pre-dated R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) and the charge on reasonable doubt did not meet the exactitude specified in Lifchus. However, the charge to the jury successfully achieved the following: it demonstrated the relationship between the presumption of innocence and the criminal standard of proof; it made it clear that the jury was not to decide the case on the basis of emotion, sympathy nor prejudice; it specified that the verdict must be based on the evidence; and it emphasized that the Crown must prove all of the essential elements of the offence beyond a reasonable doubt with the onus continually resting with the Crown and never with the accused.

[4] Although the trial judge did not deal with the third alternative in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), he repeated on numerous occasions that the Crown had to prove the guilt of the accused beyond a reasonable doubt.

[5] In our view, the charge, read as a whole, would not give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof.

[6] The grounds of appeal raised with respect to the answer to a question from the jury and with respect to the charge on the issue of gross indecency have no merit.

[7] Immediately after the witness testified to similar acts, the trial judge expressly instructed the jury that they were not to use this evidence to come to the conclusion that the accused is a person whose character or disposition is such that he likely committed the offence described in the indictment. Its only purpose was to assist the jury in deciding whether or not the Crown had proven the allegations beyond a reasonable doubt. The trial judge said that he would provide further instructions at the end of the trial.

[8] At the end of the trial, after he had the benefit of the accused’s evidence, the trial judge charged the jury in the language authorized by this court in R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (Ont. C.A.) at para. 96 where Doherty J.A., speaking for this court, stated that “there will be cases in which a more focused form of propensity reasoning is entirely appropriate”.

[9] On balance, while the charge to the jury was not a model of clarity, we feel that it was adequate.

[10] On the whole, the evidence against the appellant was overwhelming. The fact that the jury acquitted the appellant on the charge of assault against his daughter is some indication that the jury did not misuse the similar fact evidence.

[11] Finally, as to sentence, the trial judge characterized this case as unusual and as probably one of the worst case scenarios. As pointed out by the Crown, the appellant was a sexual predator in his own home. He abused the position of trust and authority vested in him and frequently and seriously abused two children in his care. Under the circumstances, we think that the sentence was fit.

[12] In the result, the appeals against conviction and sentence are dismissed.

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”

(signed) “K. Feldman J.A.”