COURT OF APPEAL FOR ONTARIO

DATE: 20010104

DOCKET: C31449

MCMURTRY C.J.O., CHARRON AND MACPHERSON JJ.A.

BETWEEN:
HER MAJESTY THE QUEEN
(Respondent)

and

F.W.T.
(Appellant)

Philip Downes
for the respondent

Melvyn Green
for the appellant

Heard: October 31 and
November 1, 2000

On appeal from the conviction and sentence by Justice Roland J. Haines, without a jury, dated December 3, 1998 and January 18, 1999.

MACPHERSON J.A.:

INTRODUCTION

[1] The appellant, FWT., a former school teacher, vice-principal and principal in the public school system in London, Ontario, was charged with nine counts of historical sexual offences. The nine counts related to three complainants, all of whom were young girls in the 1976–1983 period when the offences were alleged to have been committed. The alleged offences came to the attention of the police in the mid-1990s and charges were laid in 1997.

[2] The appellant was arraigned before Haines J., sitting alone, in London on November 9, 1998. Both the Crown and the defence called extensive evidence. On December 3, 1998, the trial judge convicted the appellant of the two counts relating to complainant AB[^1] and the four counts relating to complainant CD. He acquitted the appellant of the three counts relating to complainant EF. On January 18, 1999, the appellant was sentenced to three years incarceration in total. The appellant appeals against the conviction and sentence.

A. FACTS

[3] There were three complainants, all of whom testified at the trial.

[4] The charges in relation to the complainant AB were sexual intercourse with a previously chaste female under 16 but older than 14 and gross indecency. The time frame for the alleged offences was January – September 1976.

[5] AB testified that she met the appellant and his first wife, Rosemary, when she was 12. She became a babysitter for the T family when she was 13. She felt comfortable in the T home. Indeed, she regarded it as a sanctuary away from her own home where her parents argued and her father had an alcohol problem.

[6] AB testified that the appellant told her he wanted a sexual relationship with her on the night in 1974 when his daughter ST was born. After rebuffing him on several occasions, they had sexual intercourse for the first time on January 6, 1976 in the main bedroom of the appellant’s home. She was 15 and a virgin.

[7] AB testified that she and the appellant had sexual intercourse regularly for the next nine months. The sexual relationship “considerably decreased” when AB returned to school (Grade 11) in September 1976. She was increasingly busy and starting “to feel that it wasn’t right”. After the appellant and his first wife separated, she maintained a social relationship with him and his son JT and became friends with the appellant’s second wife, VT.

[8] The appellant confirmed that AB was a babysitter for the family and that she became a family friend. He denied having any sexual relationship with her. He testified that on one occasion in 1985 or 1986 (when AB would have been 25 or 26), AB called and invited him to her home. She played a romantic record and approached him in a manner that signalled her desire to start an intimate relationship. He felt uncomfortable, said “no” and left within five minutes.

[9] The charges in relation to the complainant CD were sexual intercourse with a female under 14, indecent assault, sexual intercourse with a previously chaste female under 16 but older than 14 and gross indecency. The time frame of the alleged offences was September 1977 – September 1980.

[10] CD testified that she first met the appellant when she was a 13 year old student in Grade 7 and he was vice-principal at L.[...] School in London. She was experiencing family difficulties, including sexual abuse by her father. She came to trust the appellant and would discuss her problems with him.

[11] CD testified that the appellant started to touch her in a sexual way, first in his car, then in a locked school nurses’ office during lunch hour. Eventually, while she was still in Grade 7, they had sexual intercourse in his car and in two apartments.

[12] CD testified that their sexual relationship continued until she was 25. They had intercourse at the appellant’s home, in apartments, in his car and in secluded locations. The relationship continued even after CD married because “I think that I fell in love, or thought I was in love with Mr. FWT.”. On one occasion, when she was between 14 and 16, they engaged in anal intercourse which “really hurt”. CD ended the relationship when she was 25 because “then I met my second husband and I, I knew what love was then, and I stopped it dead”.

[13] The appellant testified that CD was a difficult student. She exhibited self-destructive behaviour and abused alcohol and drugs. He tried to help her at school and visited her home for discussions with her mother. Later, when CD was older, she visited his home on a motorcycle and he loaned her money.

[14] The appellant denied any sexual relationship with CD. He testified that, about a month after he and his second wife separated in 1989, CD, who would have been a young adult, came to his home and made advances which he spurned.

[15] The charges in relation to the complainant EF were gross indecency, indecent assault and sexual assault. The time frame for the alleged offences was January 1981 – September 1983.

[16] EF testified that when she was a child she lived about a block from the FWT's. In her Grade 6 year, she would come to the FWT home in the mornings to pick up JT and walk with him to school. VT, a school teacher, would not be present. While JT was getting dressed, the appellant would invite EF into his bedroom. He fondled her and taught her to masturbate him. She also testified that she was 90 per cent sure that they had sexual intercourse on one occasion.

[17] The appellant agreed that EF and his son were friends who walked to school together in the 1981–1982 school year. However, he said that he never saw her at his home in the mornings because by 8:00 a.m. he had departed for work. He denied inviting EF into the bedroom or sexually abusing her.

[18] The trial took place on November 9–13, 1998. On December 3, 1998, the trial judge delivered oral reasons for judgment which, when transcribed, are 22 pages in length. He convicted the appellant of all counts relating to AB and CD and acquitted him of the counts relating to EF.

[19] On January 18, 1999, the trial judge sentenced the appellant to two years for sexual intercourse with CD when she was under 14, one year consecutive for sexual intercourse with AB, a previously chaste female under 16 but older than 14, and one year concurrent on each of the other four counts. The total sentence was, therefore, three years incarceration.

[20] The appellant appeals against the convictions and sentence. With respect to the convictions, the appellant contends that the trial judge made errors in resolving credibility, misapprehended the evidence and failed to resolve evidentiary conflicts, made improper use of evidence about the appellant’s character and conduct, and improperly entered a conviction for gross indecency with respect to AB.

[21] The sentence appeal is, in effect, a contingent appeal. The appellant does not appeal the total sentence of three years if the conviction appeal is dismissed in its entirety. However, he submits that if the conviction appeal with respect to one complainant is allowed, the total sentence should be reduced and, potentially, converted to a conditional sentence. The Crown agrees with the appellant’s position with respect to sentence reduction if the conviction appeal is allowed with respect to one complainant. However, the Crown opposes conversion of a reduced sentence into a conditional sentence.

B. ISSUES

[22] The issues on this appeal are:

(1) Did the trial judge err in his approach to resolving issues of credibility?

(2) Did the trial judge misapprehend evidence and fail to resolve important evidentiary conflicts?

(3) Did the trial judge err in his treatment of evidence, called by both the Crown and the defence, relating to the appellant’s character and conduct?

(4) Did the trial judge err by convicting the appellant of the offence of gross indecency with respect to the complainant AB?

(5) If the conviction appeal is allowed in part, what is the appropriate sentence for the appellant?

ANALYSIS

(1) Credibility

[23] The appellant contends that the trial judge in effect reversed the burden of proof by the way he approached the issue of credibility. The appellant submits that the trial judge reviewed the evidence of AB and CD and concluded that both were credible witnesses. Then the trial judge reviewed the evidence called by the defence to determine whether his findings of credibility had been displaced. The appellant contends that this approach is contrary to R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.) wherein Finlayson J.A. said, at p. 59:

The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation … This is particularly true where the Crown’s case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses’ credibility and reliability.

[24] In my view, the trial judge did precisely what Gostick requires. It is true that he reviewed the testimony of the complainants first. That is neither surprising nor unusual. However, he reviewed their testimony critically, pointing to inconsistencies and dealing with them explicitly. Moreover, he engaged in an extensive review of the evidence called by the defence, especially the appellant’s own testimony.

[25] The appellant also complains about this passage in the trial judge’s reasons:

On the other hand, I do not accept the evidence of the accused and do not find that the evidence of the defence raises a reasonable doubt. Wherever there is a conflict in evidence with respect to counts one through six, I prefer the evidence of the crown witnesses. I have rejected the evidence of the accused, not because of any flaw in his demeanour while testifying or because of any glaring inconsistency or contradiction in his evidence. I have rejected his evidence because his denials cannot stand against the convincing weight of the Crown’s case. [Emphasis added in appellant’s factum.]

[26] The appellant submits that the emphasized words ‘prefer’ and ‘weight’ establish that the trial judge simply balanced the Crown evidence against the defence evidence and favoured the former, an approach that reflects a misapplication of the burden of proof in a criminal case.

[27] I do not agree with this submission. Although this passage, viewed in isolation, lends support to the appellant’s position, the passage must be considered in the context of the whole reasons. At the start of his reasons, the trial judge explicitly directed himself on the beyond a reasonable doubt standard. Moreover, throughout his review of the evidence he was alive to inconsistencies. As well, it should be recalled that he acquitted the appellant of all charges relating to one complainant. His careful treatment of the evidence with respect to this complainant, and indeed his verdict of not guilty, belie the assertion that he misunderstood and incorrectly applied the criminal burden of proof with respect to the other two complainants.

(2) Misapprehension of evidence and failure to resolve evidentiary conflicts

[28] The appellant labelled this ground of appeal his Morrissey argument after this court’s decision in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193. In Morrissey, the court held that a conviction based on a misapprehension of evidence is not a true verdict. Doherty J.A. described misapprehension of evidence in these terms, at p. 218:

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence.

The appellant submits that the trial judge failed to consider relevant evidence and failed to give proper effect to the evidence in three respects.

(a) Circumcision

[29] The complainant CD testified that she had sexual relations with the appellant on many occasions over a 12 year period. On cross-examination, she said that the appellant was circumcised. She said that she had “no doubts” about this fact.

[30] The defence called Dr. Ivanhoe Becker, the appellant’s family physician, to give evidence. He testified that the appellant was not circumcised.

[31] The appellant contends that CD’s evidence on this point is so glaringly wrong as to cast doubt on all of her testimony and render unsafe the verdicts relating to her complaints. The appellant submits that the trial judge, in the language of Morrissey, “fail[ed] to give proper effect to the evidence”.

[32] The trial judge did consider the evidence relating to circumcision. He said:

There were two portions of [CD’s] evidence that were specifically challenged by Mr. Peel. The first was her insistence that Mr. FWT was circumcised ….

The accused’s family physician, Dr. Becker, testified that he had examined Mr. FWT and gave his medical opinion that Mr. FWT was not circumcised. In cross-examination, Dr. Becker acknowledged that in some cases the foreskin covers more of the head of the penis than others, and indicated that he had not examined the accused with an erection.

[33] The trial judge proceeded to consider the second component of CD’s evidence that defence counsel had challenged (a matter not relevant to this appeal). He then stated his conclusion:

Having reviewed and considered these aspects of [CD’s] evidence in the context of all of her testimony, I do not find that they impact adversely on her credibility. In my opinion, she was a credible witness.

[34] In my view, the trial judge was entitled to reach this conclusion. Dr. Becker’s testimony did not render CD’s testimony untruthful. On cross-examination, Dr. Becker testified:

Q. And am I accurate in understanding that the foreskin of his penis does not come all the way to the end of the tip of the penis?

A. It is close to the tip of the penis.

Q. But would it be accurate to say that there are probably, be degrees of that?

A. That’s possible.

Q. Alright, and you didn’t examine him with an erection?

A. No sir.

Q. And that would make an effect on where the foreskin comes at the top of the penis?

A. Of course, yeah.

[35] This exchange supports precisely the analysis the trial judge made on this issue. He acknowledged the conflict between CD’s and Dr. Becker’s testimony, but then pointed out that variables which the doctor specifically acknowledged did not render CD’s testimony untruthful.

(b) J.T.

[36] CD testified that, at the appellant’s request, she had intercourse with his son JT when he was about 16. JT testified and denied CD’s allegation. The appellant contends that the trial judge erred by not explicitly considering this conflict in the evidence. This omission was particularly troubling, the appellant submits, because the trial judge “relied on JT’s evidence to dismiss the counts involving the third complainant [EF]” (factum, paragraph 51). The appellant contends that if the trial judge believed JT with respect to the EF complaint, he should also have believed him when he said that he never had sexual relations with CD. It would then follow that if the trial judge disbelieved CD on the question of sexual relations with the son, this should have led him to have a reasonable doubt about CD’s allegations about sexual relations with the father, the appellant.

[37] I disagree. The trial judge did record CD’s testimony that she had sexual relations with JT; he also recorded JT’s denial. He did not expressly address the conflict in their evidence. In my view, he was not required to do so. A trial judge need not address every inconsistency in the evidence at trial. He is entitled to exercise his discretion and identify and deal with those inconsistencies which he considers to be particularly significant. The trial judge did this in his reasons in relation to all three complainants. With respect to CD, he dealt explicitly with two portions of her testimony that were specifically challenged by defence counsel – the circumcision issue and the issue of whether the appellant was a vice-principal at CD’s school when she was in Grade 8. The fact that the trial judge did not specifically address the conflict in testimony between CD and JT is not a fatal error.

[38] Moreover, the appellant’s submission that the trial judge relied on JT’s testimony “to dismiss the counts involving the third complainant [EF]” is too broadly stated. The trial judge’s reasons for dismissing those counts related to the evidence of lack of opportunity, which was not entirely based on JT’s testimony. Further, it was open to the trial judge to accept part of JT’s testimony and to reject other parts.

(c) AB’s age

[39] One of the offences with which the appellant was charged was sexual intercourse with AB, “a female person …. of previously chaste character, who was under the age of 16 years”. AB was born on […], 1960. She testified that she first had intercourse with the appellant in January 1976, which would have made her 15 years old. She said the relationship continued until September 1976 when she was 16 and entering Grade 11.

[40] In cross-examination, defence counsel put to AB that she might have been 17 when she entered Grade 11. AB replied “I think I was 16 in Grade 11” and, soon after, “I’m trying to remember how old I was in Grade 11”. The appellant asserts that these are equivocal answers. Moreover, the appellant points out that no documentary or other evidence was introduced at trial to establish AB’s age in Grade 11. These facts taken together, submits the appellant, should have raised a reasonable doubt about whether AB was in fact under 16 when the alleged sexual intercourse with the appellant started.

[41] I disagree. The two responses singled out by the appellant were made during cross-examination. In the context of the questions she was being asked, AB’s response “I think I was 16 in Grade 11” was not equivocal. Rather it was an affirmative assertion of how old she was at that time. Moreover, AB was completely precise about the first time she had intercourse with the appellant. It was not just a year (e.g. 1976) nor was it even a month (e.g. January 1976). It was a specific date – January 6, 1976. On that day, she was 15.

[42] The trial judge was alive to the issue of AB’s age. He carefully reviewed her evidence of when the sexual relationship with the appellant started. He described the events of the Christmas season in 1975 which led up to the night of January 6, 1976. He recorded that, many years later, when the appellant’s daughter ST turned 15, AB reminded the appellant that that was her age when they started their sexual relationship. The trial judge also referred to the cross-examination of AB on this issue: “She defended her recollection of January 6, 1976, as being the day she first had intercourse, and a date she would not forget because of that”.

[43] In my view, the trial judge did not ignore the question of AB’s age. It was a live issue and he dealt with it. He accepted AB’s testimony that she was 15 when she first had sexual intercourse with the appellant. There was an abundance of evidence to support the trial judge’s conclusion on this point.

(3) ‘Circumstantial’ and ‘character’ evidence

[44] At the trial, the defence called six former students who testified that the appellant was a caring teacher who helped them a great deal and did not engage in any sexual activity with them.

[45] In his testimony, the appellant mentioned some of the awards he had received, including an Educator of the Year award from the Ontario Federation of Home and Schools. This component of his testimony clearly placed his character is issue ( a fact conceded by defence counsel at trial), and the Crown called two adult witnesses in reply who testified about group sex with the appellant, adultery, financial importuning and sexual relations with the appellant’s son.

[46] The appellant asserts that the trial judge attached too little weight to the evidence of the former students and too much weight to the reply evidence of the two adult witnesses. The appellant labels the evidence of the six former students circumstantial evidence of innocent association, not character evidence. The appellant calls the reply testimony character evidence.

[47] In my view, the characterization of the evidence becomes irrelevant in this case because the trial judge did not ultimately rely on any of it. The trial judge summarized the evidence of all these witnesses in very brief fashion. He commenced his review of the appellant’s testimony. Having mentioned the appellant’s successful career in education and his volunteer work, the trial judge acknowledged the testimony of the former students “who had high praise for him as a caring person, who gave freely of his time to help and advise troubled students”. He then briefly reviewed the testimony of the two adult witnesses who described the appellant in a negative light. He then concluded:

The evidence relating to Mr. FWT’s character was compelling, but in the end is, in my view, of little assistance given the nature of the allegations and the instructions provided by the Supreme Court of Canada in R. v. Profit. [(1993), 1993 78 (SCC), 85 C.C.C. (3d) 232 (S.C.C.)]

[48] In my view, the trial judge was entitled to conclude that the evidence of the former students called by the appellant and the evidence of the two adults called by the Crown in reply were “of little assistance”.

[49] The fact that the appellant did not engage in sexual relations with six, or even thousands, of students during his career is of virtually no probative value. It is, as the Crown put it in its factum, “akin to a bank robber adducing evidence of all the banks he went into in his life from which he didn’t steal money”. Thus, even if the appellant’s label of circumstantial evidence of innocent association is correct, it does not help the appellant. Even the most dedicated criminal has many moments of innocent association.

[50] Similarly, the evidence of the two adult witnesses who testified about alleged sexual misconduct by the appellant in relation to them was also irrelevant. It almost certainly should not have been admitted (although it should be recorded that trial counsel specifically agreed to its admission) because it went beyond the permissible boundaries of reply evidence with respect to general reputation in the community. Fortunately, this was not a jury trial. The trial judge said that the evidence was “of little assistance”. This conclusion strikes me as entirely correct; sexual activities with consenting adults would, in my view, suggest nothing one way or the other about alleged sexual misconduct in relation to young girls. Having summarized the evidence of the two adults in very brief fashion, and then dismissed it as “of little assistance”, the trial judge returned to his review of the appellant’s testimony. He never mentioned the reply evidence again.

[51] My conclusion is that the trial judge did not err in his treatment of the evidence of the former students and the two witnesses called as reply witnesses. Basically, he placed all of this evidence on the sidelines, where it deserved to be.

(4) Gross Indecency – AB

[52] The appellant submits that the appellant should not have been convicted of gross indecency in relation to AB. The acts described by AB included sexual intercourse and oral sex, but not anal sex or any group activities. The appellant submits that private acts of consensual sex between a 15 or 16 year old girl and a man in his early 30s were not a marked departure from the standards of decency prevailing in the 1970s and therefore did not constitute gross indecency. The appellant contends that the trial judge erred by not addressing this issue.

[53] I do not agree with this submission. The thrust of the defence position at trial was that AB was lying and that there was never a sexual relationship between her and the appellant. No issue was raised at trial as to whether the alleged conduct constituted gross indecency. In fact, in formulating its position, defence counsel described the alleged activities in terms that would suggest that they were so horrible that AB could not be telling the truth about them. In his closing address, defence counsel said:

She recalls being lured by the so-called kindness, lured by the security of the kind, kind person and would have the fact that there was the friendly playful cuddling and the kissing that led her to go to washroom and come back and one has to say, well, the next step is either emblazoned in mind or amplified in mind, but one would perhaps find it more horrible an image is hard to concoct than to think that a little child would come back to the person that had been so kind and supposedly be confronted by the threat of now the adult male standing naked and facing the child so to speak, in a way she’s never known before.

And her evidence that she decides to continue and to have or submit to the sex and one, I respectfully urge, has to then say, the last vision that woman would supposedly have in her mind, that child, then child would have in her mind would be just before Christmas the horrible threat of this beast inside the door who is now saying, you will submit to what I was going to in a beastly way change into, and she’s saying “yes, I think I will do this”. . . . [Emphasis added.]

[54] The trial judge concluded that AB’s testimony was credible and that the events she described had in fact taken place. In my view, the evidence supports the verdict of guilt on the charge of gross indecency.

(5) Sentence

[55] Since the convictions relating to both AB and CD should stand, the appellant’s contingent appeal with respect to sentence does not arise.

DISPOSITION

[56] I would dismiss the conviction appeal, grant leave to appeal sentence and dismiss the sentence appeal.

Released: January 4, 2001

(signed) “J.C. MacPherson J.A.”

(signed) “I agree R.R. McMurtry C.J.O”

(signed) “I agree L. Charron J.A.”

[^1]: An order banning publication of information that might identify the complainants is in effect.