COURT OF APPEAL FOR ONTARIO
DATE: 20000503
DOCKET: C29101
CHARRON, MOLDAVER and MacPHERSON JJ.A.
B E T W E E N : )
) Eric Lewis,
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) Sandra Kingston,
) for the respondent
LORNE KEEPER )
)
Appellant )
)
Heard: May 1, 2000
On appeal from his conviction by Mr. Justice Macdonald, sitting
with a jury, on November 18, 1996
BY THE COURT:
[1] The appellant was convicted of sexual assault and sentenced
to eight months' imprisonment. He appeals against conviction on
several grounds.
[2] First, the appellant submits that the trial judge restricted
defence counsel in his cross-examination of the complainant on
prior discreditable conduct and on the effects of alcohol on her
memory. We see no merit to this ground of appeal. In our view,
the trial judge did not restrict the defence in his cross-
examination as alleged. He was simply giving directions to
counsel that were entirely appropriate in the circumstances.
[3] Second, it is submitted that the trial judge misapprehended
the evidence or failed to point out certain contradictions in the
evidence. Again, we see no merit to this ground of appeal. In our
view, the trial judgeÆs review of the evidence was both fair and
accurate.
[4] Third, the appellant submits that the trial judge erred in
instructing the jury that they might find it appropriate to use a
ôlower test of reliability in the case of a young person than you
would to the memories formed by an adultö. The trial judge gave
extensive instructions on how to properly assess the credibility
of witnesses and, in particular, the reliability of their
testimony based on factors particular to the individual witness.
The impugned instruction must be read in the context of the
totality of the instructions on this point. When this is done, it
is clear that the trial judge was simply giving the jury an
example of how they might choose to assess the factors that can
affect the memories of young people. The trial judge was not in
error in instructing the jury as he did. It is also noteworthy
that the trial judge made it clear to the jury that even if they
decided to assess the credibility of differing individuals using
differing means, the burden remained upon the Crown to prove the
essential elements of the offence beyond a reasonable doubt.
[5] Finally, the appellant submits that the trial judge erred in
allowing hearsay evidence to be introduced and further that he
misdirected the jury on what use could be made of this evidence.
We see no reversible error in anything that transpired at trial.
It is particularly noteworthy that no objection was made by the
defence to any of the evidence in question.
[6] One item of evidence relates to the evidence that the
appellant had been charged on the same day with respect to
another young girl in addition to the complainant in question.
The jury was also made aware that the other complainant did not
show up at the preliminary hearing and that this additional
charge had been withdrawn. While it would have been preferable if
the police officers had not blurted out the fact of this
additional charge, no miscarriage of justice was occasioned by
the admission of this evidence. The appellant took the position
in his defence that this evidence supported his contention that
the two young girls, including the complainant in this case, had
a motive to lie and had fabricated their evidence. Further, the
trial judge properly instructed the jury on the use which they
could make and could not make of this evidence. Indeed his
instructions on this point may have been overly favourable to the
defence.
[7] It would also have been preferable if Mr. Procop had not
testified about information given by his wife in their joint
statement to which he was not privy. However, this matter was
fully canvassed before the jury in cross-examination. Further,
the trial judge properly instructed the jury to disregard the
evidence in question.
[8] For these reasons, the appeal is dismissed.