DATE: 20010122

DOCKET: C33640

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– S. H. (Appellant)

BEFORE: CATZMAN, CARTHY and WEILER JJ.A.

COUNSEL: Sam Scratch, for the appellant Randy Schwartz, for the respondent

HEARD: January 19, 2001

RELEASED ORALLY: January 19, 2001

On appeal from the conviction imposed by Justice John R. Jennings, sitting without a jury, dated June 30, 1999 and from the sentence imposed by Justice Jennings dated September 24, 1999.

E N D O R S E M E N T

[1] Order for a publication ban to issue.

[2] Following a trial, the appellant was convicted of one count of sexual assault, assault and two counts of uttering threats. He also pled guilty to one count of breach of recognizance. The appellant appeals his convictions and sentences.

[3] The appellant raises several grounds of appeal related to the reasons concerning the count of sexual assault. The appellant submits, however, that this count is so interrelated with the counts of assault and uttering threats that the appeal against all of the convictions should be allowed.

The alleged Coutts error:

[4] The appellant submits that the trial judge used his disbelief of the appellant’s evidence as positive proof of guilt and in so doing fell into the error in R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 at 550-2.

[5] Early in his reasons for judgment, the trial judge stated that he rejected the appellant’s evidence. He further stated that he had no hesitation in convicting the appellant of the counts of assault and of the counts of uttering death threats against Ms. S. and her son. The trial judge then noted that the appellant had pled guilty to the count of failure to comply with a recognizance. The balance of the trial judge’s reasons deal with the count of sexual assault. Prior to convicting the appellant on the count of sexual assault, the trial judge accepted the complainant’s evidence that, after the physical assaults began, she did what she could to reject the appellant’ sexual advances. The trial judge then stated that the appellant’s evidence raised no reasonable doubt and convicted him.

[6] The trial judge found that the complainant was a credible witness; he made reference to and accepted her evidence on one specific point. He did not, as was argued, move directly from disbelief of the appellant’s evidence to a finding of guilt. Having regard to the reasons as a whole, although particular aspects of the judgment may not have been in logical order, the trial judge did not commit a Coutts error with respect to any of the counts.

Alleged reliance on unproven explanations for the complainant’s behaviour

[7] The trial judge stated that the count of sexual assault was, “the troubling aspect of the case to my mind.”

[8] He had concerns as to why the complainant would allow the assaults to continue over a three month period. He stated, “But I have upon reflection likened the situation somewhat to that of battered wife syndrome.” The appellant’s submission is that the trial judge relied on battered wife syndrome to explain the complainant’s delay in disclosure when there was no foundation for this in the evidence.

[9] In the paragraph following this comment, the trial judge accepted the Crown’s submission which characterized the situation, “as one of escalating sexual domination and, to that I would add psychological domination, by a person who had become, from the evidence of Miss S., fixated upon her residence that she felt with justification that she could not leave it without coming into contact with him.”

[10] We do not agree that the trial judge diagnosed a syndrome. Rather, he picked points of evidence that satisfied him as to the explanation for the suggested delay. We would not give effect to this ground of appeal.

Improper reliance on nurses notes as corroboration and prior consistent statements

[11] The trial judge commented, “I should say that to some extent corroborative of the evidence of Ms. S. and her son are the observations recorded by the registered nurse … the day following the final assault which according to the evidence of Ms. S. took place on December the 1st.” The trial judge did not say that he relied on what the complainant purportedly said to the nurse as proof of the sexual assault.

[12] In addition the trial judge explained what observations made by the nurse he was relying on, namely, “her difficulty in dealing with the unpleasant subject”, that she came to court to talk about and that he himself observed.

[13] We would dismiss the appeal against conviction.

The appeal against sentence

[14] In addition to nine months pre-trial custody, the appellant was sentenced as follows: “3 years and 9 months concurrent for sexual assault; 1 year concurrent for assault; 2 years concurrent for uttering threats; and six months consecutive for failing to comply with a recognizance.” Although the appellant was tried and found guilty with respect to four counts plus the count to which he pled guilty, the trial judge at the outset of his reasons stated he was sentencing the appellant with respect to three counts plus the count to which he pled guilty. He then inserted the ambiguous “3 years and 9 months concurrent” with respect to count 1. For some reason, the trial judge did not sign the back of the indictment confirming the sentences that he imposed. Someone set out a list of sentences for signature and noted that the trial judge had missed one count. In these circumstances, we would give the benefit of the ambiguity to the appellant and reduce the sentence on the count of sexual assault to three years. The sentences on all other counts are confirmed.

[15] Accordingly, we would grant leave to appeal sentence and allow the appeal as to sentence to the extent indicated.

Signed: “M.A. Catzman J.A.”

“J.J. Carthy J.A.”

“K.M. Weiler J.A.”