COURT OF APPEAL FOR ONTARIO

DATE: 20001215

DOCKET: C30619

RE: HER MAJESTY THE QUEEN (Respondent) - and - G.M. (Appellant)

BEFORE: FINLAYSON, LABROSSE and FELDMAN JJ.A.

COUNSEL: Timothy E. Breen

For the appellant

R. Graham Zoppi

For the respondent

HEARD: DECEMBER 7, 2000

On appeal from the conviction by Justice Arthur C. Whealy dated November 18, 1997.

E N D O R S E M E N T

[1] The appellant appeals his conviction by a jury on four counts, two of sexual assault and two of sexual touching of a person under 14, involving his 12 year old step­daughter, T. The four offences occurred on two occasions, the first in August, 1995, and the second in October, 1995. The first involved digital penetration, while the second involved both digital penetration and intercourse. The complainant first complained on November 1, 1995 when she believed that she was about to be attacked again. She ran to her friend’s house and told her friend’s mother, who called the police.

[2] The appellant raises four grounds of appeal:

(a) The first ground is that the trial judge erred by allowing the Crown to introduce similar fact evidence involving a sexual assault and physical abuse of the appellant’s natural daughter, C, some ten years earlier. The appellant had pleaded guilty to the sexual assault of C. In argument in this court, counsel acknowledged that the admission of the evidence of the sexual assault was proper on the authority of R. v. B.(L.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (O.C.A.), as the evidence was highly probative and not overly prejudicial when compared to its probative value.

As to the physical, non-sexual abuse described by C, in our view it was admissible to reveal the nature of the relationship between the appellant and his children and to explain the complainant’s fear to complain after the appellant threatened her with harm if she did. Further the evidence assisted in explaining the delayed disclosure. It also was admissible to give context to the fact that the complainant submitted to the assaults on two occasions before rebelling.

In his charge, the trial judge never referred to this evidence. Neither did he give any limiting instruction on it. However, not only did defence counsel not object on this point, he said the charge was fair and to the point. In this case, in the context of the charge as a whole, the failure to direct the jury to the evidence of physical abuse and then to tell them not to use it to convict the appellant as a bad person, may well have enured to the appellant's benefit. We are entitled to infer that this was the reason why counsel did not object on this point.

(b) The second ground of appeal is that the trial judge erred in admitting the evidence of the complainant’s friend and of the friend's mother as to the incidents on October 31 and November 1 leading up to the call to the police by the friend’s mother. Furthermore, it was argued that he erred by referring to that evidence in his charge as corroboration of the testimony of the complainant, without giving a limiting instruction that it could not be used by the jury as a prior consistent statement and therefore self-corroborative of the complainant’s evidence of the offences.

In our view, this evidence regarding the history leading up to the complaint was properly admitted as part of the narrative. It did not contain the details of the disclosures of the assaults. See R. v. R.G. (1993), 1993 14699 (ON CA), 80 C.C.C. (3d) 130 (O.C.A.). We are satisfied that it was clear to the jury in the context of the charge that this evidence could only be corroborative of the complainant's version of the events of those two days and not of the details of the alleged assault. We would therefore not give effect to this ground of appeal.

(c) The third ground of appeal is that the trial judge erred in closing off the cross-examination of the witness S, another daughter of the appellant, on a prior inconsistent statement contained in a transcript, when she denied any recollection of the testimony. This matter was not pursued at trial with the witness to the extent necessary to form the basis of a complaint in this court. In fact the questioning on the prior transcript was abandoned by defence counsel at trial.

(d) The fourth ground of appeal is the ruling by the trial judge that the Crown was not required to produce and disclose to the defence the entire Crown brief from the C prosecution in 1985. There was disclosure of C's statements, but not of the balance of the file which was in storage at the time. Counsel did not request the assistance of the trial judge until after he had ruled during the trial that C's evidence was admissible as similar fact evidence. Counsel should have raised this point before the trial so that if necessary, the case could have been adjourned while Crown counsel obtained the file. We do not know what is in the file to this date. The appellant has therefore failed to show any prejudice.

[3] In dismissing this appeal, we note that the evidence led by the Crown was very strong, and that the appellant did not testify.

[4] It does not appear from the record before this court that a publication ban was considered at trial. This court orders a ban on the names of those involved in order to protect the identity of the complainant and other witnesses. (s. 134, Courts of Justice Act, R.S.O. 1990, c. C. 43).

"G.D. FINLAYSON J.A."

"J.M. LABROSSE J.A."

"K. FELDMAN J.A."