DATE: 2001-11-16
DOCKET: C34995

COURT OF APPEAL FOR ONTARIO

RE: Her Majesty the Queen (Respondent) – and V., H.M. (Appellant)

BEFORE: Morden, Carthy and Moldaver JJ.A.

COUNSEL: Keith E. Wright for the appellant Stacey D. Young for the respondent

HEARD: November 9, 2001

RELEASED ORALLY: November 9, 2001

On appeal from the convictions of Justice John A. Desotti dated July 4, 2000.

ENDORSEMENT

[1] This was a straightforward trial before a judge without a jury in which the basic issue was the credibility of the complainant and the reliability of her testimony. The appellant did not testify. We deal with the issues raised by the appellant as follows.[^1]

[2] With respect to the evidence of the complainant’s prior consistent statements, we observe that it was adduced without objection by the appellant’s trial counsel. We have concerns about the admissibility of this evidence. However, the trial judge made it clear that he was not accepting it as going to the truth of the allegations in the complaints and further, it is not clear to us from his reasons that he, in fact, made any improper use of the evidence.

[3] The evidence submitted to show bad character of the accused was also adduced without objection by the accused. It formed an insignificant portion of the total evidence in the case and was not referred to by the trial judge in his reasons. It is to be presumed that he excluded it from his mind in arriving at his judgment. Further, we note that the evidence of the sister-in-law was relied upon as being of some assistance to the defence.

[4] It is submitted that the trial judge erred in relying on the evidence of the appellant’s wife in light of the fact that it had not been disclosed before the trial. This evidence was, no doubt, admissible and, in admitting it, the trial judge said that the non-disclosure was a factor to be taken into account as going to its weight. We must therefore assume that he was aware of its potential frailty.

[5] We do not think that any serious error is shown in the failure of the trial judge to refer to the appellant’s pre-trial denials of guilt when he was dealing with the decision in R. v. J.C.P. There is a substantial difference between an accused giving evidence under oath, subject to cross-examination at a trial and his bald denials of guilt to certain persons in pre-trial conversations.

[6] We would have no hesitation in applying the proviso to the errors which we have identified.

[7] With respect to the submission of unreasonable verdict, we have no doubt that the verdict was reasonable given the testimony of the complainant and the trial judge’s acceptance of it. The trial judge, no doubt, fully aware of the circumstances which could have cast doubt on the evidence and it would be reasonable to conclude that he took them into account.

[8] We are satisfied that there is no merit in the appellant’s submission respecting multiple transactions. The respondent concedes, correctly, that the Kienapple principle is applicable – with the result that the convictions for sexual assault and sexual interference should be stayed.

[9] The appellant’s counsel abandoned the appeal from sentence on his behalf during the hearing.

[10] In the result, the appeal from convictions is allowed but only to the extent of staying the convictions for sexual assault and sexual interference. The conviction for incest shall stand. The appeal from sentence is dismissed as an abandoned appeal.

“J.W. Morden J.A.”

“J.J. Carthy J.A.”

“M.J. Moldaver J.A.”

[^1]: A non-publication order under s. 486(3) of the Criminal Code is in effect.