DATE: 20011009 DOCKET: C35844

COURT OF APPEAL FOR ONTARIO

CATZMAN, ROSENBERG and MOLDAVER JJ.A.

B E T W E E N :

Murray H. Shore,

HER MAJESTY THE QUEEN

for the appellant

Respondent

• and -

Laura Hodgson,

for the respondent

GERALD LEVERT

Appellant

Heard: September 4, 2001

On appeal from his conviction by Justice R. J. Cusson, sitting with a jury, on October 5, 2000 and from the sentence imposed on February 8, 2001.

ROSENBERG J.A.:

[1] The appellant appeals from his conviction and sentence for sexual interference. [^1] On the appeal from conviction, he submits that the verdict following a trial before Cusson J. and a jury was unreasonable. He therefore asks that this court enter an acquittal. In the alternative, he submits that a new trial is required because of a number of serious improprieties by Crown counsel in the conduct of the cross-examination of the appellant and in the jury address. If this court should uphold the conviction, the appellant asks that the custodial part of the sentence of six months’ imprisonment and two years’ probation be varied to a conditional sentence. For the reasons that follow, I would dismiss the appeal from conviction and sentence.

THE FACTS

[2] The appellant met M.L. at a swimming pool in Ottawa. M.L. was the foster mother of the complainant P.G. P.G. was five or six years of age at the time. He was fourteen years of age at the trial. The appellant and M.L. became friends and the appellant took an interest in P.G. The appellant is a school teacher and became something of a big brother to the complainant. The appellant took the complainant and other boys on various outings and on occasion the complainant and one of his friends slept over at the appellant’s home.

[3] The complainant has several disabilities. He is dyslexic, cannot tell time, days or months, cannot read nor write nor count and does not have a good memory. He suffers from Attention Deficit Disorder, has difficulty concentrating, and has been taking Ritalin since the age of seven or eight years.

[4] The charges against the appellant relate to two incidents. The complainant testified that when he was nine or ten years of age he and a friend, C.B., were sleeping over at the appellant’s home. He testified that the appellant came down to the basement where he was sleeping. The appellant put his hand on the complainant’s penis, underneath his clothing and was “playing” with it. C.B. was present at the time but was not called as a witness. The complainant was not sure whether C.B. would have seen anything. The complainant remembered that he and his friend had been watching a particular movie earlier in the night.

[5] The appellant remembered the time when the complainant and C.B. slept over at his home and had been watching the movie described by the complainant. The appellant admitted that he went down to the basement where the complainant and C.B. were staying. He testified, however, that he went downstairs because the boys were supposed to be sleeping but were still watching the movie. The appellant stayed with the boys and watched the last fifteen minutes of the movie and then turned off the television. He denied any improper touching.

[6] The second incident testified to by the complainant occurred when the appellant took him rollerblading at an arena. According to the complainant, after parking his vehicle, the appellant reached across and put his hand on top of the complainant’s penis over his clothing. The complainant could not identify the arena where this occurred nor could he say how long it lasted. He did testify that he and the appellant were alone in the vehicle at the time.

[7] The complainant’s foster mother confirmed that the appellant took the complainant and other boys to arenas for rollerblading. Counsel for the appellant asserts that the effect of her evidence is that, contrary to the complainant’s evidence, the appellant was never alone with the complainant on these trips, as there were always other boys or adults in the car. The appellant testified that he took the complainant rollerblading but that he was never alone in his car with the complainant on these trips. On the other hand, the appellant conceded that he was alone with the complainant in his vehicle on other occasions, such as camping trips.

[8] In January 1998, the complainant went to live with his birth mother but he continued to visit M.L. In February 1998, the complainant told M.L. about the inappropriate touching. M.L. and her husband confronted the appellant with the complainant’s allegations. According to M.L., the appellant “just sat back and it was like, no big deal. Like he just talked very low, very, very, very calm”. The appellant denied the allegations. In his testimony, he accepted this characterization of his conduct when confronted with the allegations. He explained that he is generally a calm person and he had no real concern because M.L. was a good friend and he was sure she would find out that nothing improper had occurred.

THE GROUNDS OF APPEAL FROM CONVICTION

[9] The appellant raises two grounds of appeal. First, he submits that the verdict is unreasonable. Second, he submits that misconduct by Crown counsel in his cross-examination of the appellant and in his jury address so tainted the trial as to cause actual prejudice to the appellant’s right to a fair trial, or at least created an appearance of unfairness.

ANALYSIS

Unreasonable verdict

[10] The appellant submits that the verdict of guilty is unreasonable because it depends entirely upon the unconfirmed evidence of the complainant. He points out that the complainant has a number of “serious personal difficulties” that make his evidence unreliable. Further, that evidence is not only contradicted by the appellant but by M.L. with respect to whether the complainant was ever alone with the appellant on the rollerblading trips. The appellant also particularly relies upon this part of the cross-examination of M.L.

Q. Did [the complainant] have problems on occasions with – with his ability to tell the truth? Did he ever get into trouble for things like that? Telling stories, or making things up?

A. He didn’t tell stories but he did lie at times.

Q. Okay.

A. Just so that he would not be in trouble.

Q. Yeah. But you saw that. Again, I don’t – I’m not – I don’t want you to take this on – that I’m trying in some way to be horrible but did you- did you see that as – on occasions a problem that he was lying?

A. He did not lie a lot but he did on occasion.

[11] This testimony must, however, be considered with Crown counsel’s re-examination of M.L.:

Q. [Defence counsel], Ma’am, questioned you about P. lying on certain things. What type of things would P. lie about, Ma’am?

A. Well, not eating his apple and his lunch. Things like that. He would say that he ate it but he threw it in the garbage. Or, one time he- he borrowed something from a friend and he said that his friend had given it to him. And so when I confronted him after a week that he still had it, he said no, he lent to me, I have to give back to him.

Q. So he admitted that he had lied?

A. Yeah.

Q. To your knowledge, did he ever lie about something, which would accuse someone of doing something?

A. No. And every time he would lie, he would tell me after that he had lied.

[12] I should point out that counsel for the appellant argues as part of the second ground of appeal that this re-examination was improper. For reasons that I will elaborate on when I discuss that ground of appeal, it is my view that this re-examination was not improper in the circumstances.

[13] As I have said, the complainant was fourteen years of age when he testified. While the dates of the alleged offences were somewhat uncertain because of the complainant’s disabilities, it is likely that they occurred three to four years earlier. The complainant had some problems with his memory. However, he was able to remember aspects of the incidents that the appellant confirmed, such as the name of the movie the complainant and his friend were watching at the appellant’s home. The complainant’s description of the two incidents of improper touching seems to have remained constant, although there was some inconsistency in minor details, such as the distance he and the appellant drove before reaching the rollerblading arena and the size of the parking lot.

[14] The appellant nevertheless submits that because of the complainant’s disabilities, the verdict is unreasonable. He submits that the complainant’s evidence is so unreliable that a conviction based on that evidence cannot stand. This court has the power to overturn a verdict of guilty based upon findings of credibility if those findings are unreasonable. McLachlin J. summarized the limits of this court’s jurisdiction in R. v. W. (R.) (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.) at 142:

The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

[15] While this was said in the context of a trial by judge alone, this court has a similar power to intervene in a trial by jury. I am not convinced that a finding in favour of the credibility, including reliability, of the complainant’s evidence is unreasonable. In this respect, a viable argument can be made that the attack on the complainant’s evidence is based upon unsubstantiated preconceptions about children with these types of disabilities. There is nothing to indicate that with all of his problems, mostly learning disabilities, the complainant was accurately recall that the appellant had abused him. The evidence of the complainant had to be carefully considered since it was the sole foundation of the Crown’s case and the complainant was testifying to events several years earlier. That evidence was not, however, inherently unreliable because of the complainant’s learning disabilities.

[16] The testimony from his foster mother that the complainant lied on occasion about trivial matters was no foundation for rejecting testimony given under oath in a court of law. The jurors, relying upon their common sense and experience with children, were well positioned to determine the weight to give to this testimony.

[17] The appellant also submits that the complainant’s testimony was contradicted by M.L. as to whether the complainant was alone with the appellant on one of the rollerblading trips. I have reviewed M.L.’s evidence on this point and, in my view, it is not at all clear that she contradicted the complainant. M.L. testified that when the appellant took the complainant to Montreal to go rollerblading, there were other boys in the car. However, there were rollerblading outings to places other than Montreal. On these occasions there were “sometimes” other boys present, according to M.L. The appellant confirmed that there were “many” rollerblading outings, although he testified that at least one other boy was always present.

[18] I would not give effect to this ground of appeal.

Crown misconduct

[19] Counsel for the appellant pointed to nine instances of alleged impropriety by Crown counsel in his cross-examination of the appellant and his jury address. In the course of oral argument, we asked counsel for the respondent to respond to one other aspect of the jury address. I point out that neither counsel who appeared before this court were counsel at trial. I will deal with most, but not all, of the alleged improprieties below. Some, in my view, were trivial complaints.

(i) Re-examination of M.L. and jury address concerning the complainant’s veracity

[20] I have already set out the cross-examination and re-examination of M.L. concerning the complainant’s alleged propensity to lie. No objection was taken by Crown counsel to the cross-examination and no objection was taken by defence counsel to the re-examination. Experienced counsel represented the appellant. He obviously perceived a tactical advantage in asking M.L. about the complainant’s veracity. That perceived advantage was pursued in this court when Mr. Shore, counsel for the appellant, attempted to bolster the unreasonable verdict argument by relying upon the cross-examination. I do not see how the appellant can complain when Crown counsel amplifies the record to put this evidence in perspective. The fact that the complainant, like most children, was capable of lying about trivial matters was of little assistance to the jury in their task of deciding whether he was lying in court under oath about these serious allegations. As this court said in R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1 at pp. 13-4:

Testifying under oath is so rare and a trial is such an unusual event that a person's reputation for honesty and veracity in everyday affairs is not likely to be of substantial assistance in predicting behaviour on the witness-stand. Specific safeguards surround testimony in a court of law that are simply not part of the environment of everyday life. In court, the witness is sworn to tell the truth and is subject to prosecution for lying under oath. The testimony takes place before a judge and sometimes a jury and the witnesses know that they are subject to cross-examination. This is not to say that witnesses do not lie under oath. However, the circumstances under which a person may be willing to lie under oath are probably considerably different from the circumstances in which he or she would lie to an acquaintance or even acquire a reputation for lack of veracity. [Emphasis added.]

[21] The jurors, using common sense, could probably have reached that conclusion on their own. However, the Crown was entitled to re-examine M.L. to avoid leaving the jury with an unfair and distorted picture of the complainant’s capacity to tell the truth. See R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.) at 177 [Affirmed 1977 CanLII 19 (SCC), 33 C.C.C. (2d) 360 (S.C.C.)].

(ii) Cross-examination and jury address concerning the “perfect victim”

[22] Counsel for the appellant submits that it was improper for Crown counsel to cross-examine the appellant to suggest that the complainant was the “perfect victim”. After receiving a denial from the appellant that he sexually assaulted the complainant, Crown counsel suggested to the appellant that P.G. was the perfect victim because he would have a problem remembering things. Crown counsel repeated this theme in his jury address in the following terms:

… well, wasn’t P.G. just perfect for Gerald Levert? Young, intellectually challenged, not much family support …

A conclusion, ladies and gentleman of the jury, as I have already indicated, the Crown’s theory is that P.G. was the ideal victim for Gerald Levert. And that P. was in fact sexually abused as he described. Is there any other logical and reasonable conclusion?

[23] I agree with counsel for the appellant that these parts of the cross-examination and jury address were improper. This line of argument is based on the inadmissible theory that the appellant had a propensity to sexually assault young boys and was just looking for the “perfect victim”. The substantial attack on the credibility and reliability of the complainant by the defence because of the complainant’s learning and other disabilities did not justify this attack on the appellant’s character. I will consider the impact of these improper comments after discussing the other alleged improprieties.

(iii) Cross-examination and jury address concerning the appellant’s reaction to the allegations

[24] Crown counsel introduced evidence concerning the appellant’s reaction when M.L. and her husband confronted him with the complainant’s allegations. The effect of that evidence was that the appellant was “very, very, very calm”, “not on the defensive at all”, but that he denied the allegations. The appellant was cross-examined on this evidence. He dealt very well with the evidence. In clear terms he explained his reaction. He knew M.L. to be a good friend and was sure that once they talked it out with the complainant she would discover that nothing had happened. In his jury address, Crown counsel invited the jury to consider whether the appellant’s reaction was reasonable.

[25] No objection was taken at trial or in this court to this part of M.L.’s evidence. Nevertheless, I have grave concerns about its admissibility. The law governing admission of this type of evidence is set out in R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.) at 542:

In Director of Public Prosecutions v. Christie (1914), 10 Cr. App. R. 141, [1914] A.C. 545, which constitutes the foundation of the modern law governing the admissibility of statements made in the presence of the accused, the House of Lords held that evidence of an incriminating statement made in the presence of an accused is admissible notwithstanding that there is no evidence from which it could be inferred that the accused acknowledged the truth of the statement or any part of it, if the conduct and demeanour of the accused on hearing the statement are relevant facts in the case (at pp. 160 and 166). If, however, the evidential value of the conduct and demeanour of the accused on hearing the statement is slight and the prejudicial effect of the statement is great, the trial Judge has a discretion to exclude it: Director of Public Prosecutions v. Christie, supra, at pp. 161 and 165. [Emphasis added.]

[26] Since it was not suggested that the appellant had adopted the allegations, the only possible basis upon which the evidence of the appellant’s demeanour on being confronted with the allegation could be relevant in this case is that his unusually calm reaction was evidence of consciousness of guilt.

[27] The probative value of this type of evidence is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accuseds’ demeanour was found to have played a part in the wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanour evidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal. [^2]

[28] In my view, had he been asked to do so, the trial judge might well have exercised his discretion to exclude this evidence on the basis that the prejudicial effect of the evidence outweighed its probative value. [^3] That said, in my view, the admission and use of the evidence in this case did not impair a fair trial. As I have said, the appellant handled this part of the case very well. I see no basis for believing that the jury would have attached undue weight to this part of the Crown’s case. It received only brief attention in the cross-examination of the appellant and the Crown’s jury address. In his address, defence counsel, in effect, invited the jury to find that the appellant’s response showed his innocence. While it would have been preferable for the trial judge to have directed the jury to ignore the evidence, rather than refer to it as an aspect of the Crown’s case, I am not satisfied that the use of the evidence rendered the trial unfair.

(iv) Crown counsel does not “win or lose”

[29] This trial took place in the small community of L’Orignal. Perhaps in a misguided effort to make use of the home field advantage, Crown counsel at trial referred on several occasions to counsel for the defence (who is from Ottawa) as a “very learned lawyer”. He referred to his own role in the following terms:

As Crown prosecutor I’m not in this to win or lose. The concept of winning is foreign to the Crown prosecutor. So, don’t do it for me. Do it only if you’re satisfied beyond a reasonable doubt that this gentleman is guilty.

[30] At trial, defence counsel complained to the trial judge that the remarks by Crown counsel about defence counsel’s skill were disingenuous and designed to denigrate defence counsel and thus his client. It would seem that the trial judge did not draw the same inference from Crown counsel’s conduct. I think in this area an appellate court should ordinarily defer to the trial judge’s view. We can only rely upon the transcript and, subject to some comments I wish to make about the role of the Crown, I cannot say that Crown counsel’s comments were improper.

[31] I am concerned about Crown counsel explicitly setting out his view of the role of the Crown. There is a danger that it invites an invidious comparison with defence counsel’s role. In other words, the jury may give more weight to the submissions of Crown counsel because of the impression that they are objective whereas the submissions of defence counsel should be discounted because they are biased and driven by loyalty to the client.

[32] As well, such comments come perilously close to the conduct criticized by the court in Boucher v. The King (1954), 1954 CanLII 3 (SCC), 110 C.C.C. 263 (S.C.C.). In that case, Crown counsel said the following:

It is the duty of the Crown, when an affair like that happens, no matter what affair, and still more in a serious affair, to make every possible investigation, and if in the course of these investigations with our experts, the conclusion is come to that the accused is not guilty or that there is a reasonable doubt, it is the duty of the Crown, gentlemen, to say so, or if the conclusion is come to that he is not guilty, not to make an arrest. That is what was done here.

When the Crown put in that evidence, it is not with the intention of bearing down on the accused, it was with the intention of rendering justice to him.

[33] Rand J. was highly critical of these remarks at pp. 269-70:

Many, if not the majority of, jurors acting, it may be, for the first time, unacquainted with the language and proceedings of Courts, and with no precise appreciation of the role of the prosecution other than as being associated with Government, would be extremely susceptible to the implications of such remarks. So to emphasize a neutral attitude on the part of Crown representatives in the investigation of the facts of a crime is to put the matter to unsophisticated minds as if there had already been an impartial determination of guilt by persons in authority. Little more likely to colour the consideration of the evidence by jurors could be suggested. It is the antithesis of the impression that should be given to them: they only are to pass on the issue and to do so only on what has been properly exhibited to them in the course of the proceedings. [Emphasis added.]

[34] Later at p. 270, Rand J. made the comments that were the source of Crown counsel’s statement to the jury in this case: “The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.”

[35] If Crown counsel conduct themselves in a fair and even-handed manner, this will be apparent to the trier of fact. They need not take unfair advantage of their important role in the administration of justice by wrapping themselves in the Boucher flag. That said, I cannot think that the jury in this case was so naïve as to accept at face value Crown counsel’s description of his role or that they would unfairly discount the defence submissions. Unlike Boucher, Crown counsel did not expressly or implicitly suggest that he had investigated the case and determined the appellant was guilty. Thus, while I think comments like those made by Crown counsel are best avoided, I am satisfied that they did not affect the fairness of the trial.

(v) Conclusion

[36] Of the many allegations of misconduct against the Crown, I have found that those concerning the “perfect victim” were improper. In R. v. R. (A.J.) (1995), 1994 CanLII 3447 (ON CA), 94 C.C.C. (3d) 168 (Ont. C.A.) at 176 Doherty J.A. described the test to be applied when an appellate court is faced with allegations of Crown impropriety:

There are, however, well-established limits on cross-examination. Some apply to all witnesses, others only to the accused. Isolated transgressions of those limits may be of little consequence on appeal. Repeated improprieties during the cross-examination of an accused are, however, a very different matter. As the improprieties mount, the cross-examination may cross over the line from the aggressive to the abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross-examination of an accused prejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court must intervene . . . [Emphasis added.]

[37] Crown counsel’s conduct of this case was not a model of propriety even if the “perfect victim” remark is the only one that has the capacity to undermine a fair trial. I have not, however, been persuaded that this conduct was so improper as to bring the administration of justice into disrepute. I am also not satisfied that there is a danger of a miscarriage of justice from the “perfect victim” comments. The defence was able to present its case. The cross-examination was not abusive. The appellant handled himself well in the face of a vigorous cross-examination. Although credibility was the crucial factor in this case, I am satisfied that the improper remarks by Crown counsel did not prejudice a fair trial. The appellant dealt well with the “perfect victim” cross-examination and there was no evidence at all before the jury to suggest the appellant had any disposition to sexually assault young boys. The trial judge, apparently in response to some of defence counsel’s complaints about Crown counsel’s jury address, gave the jury a “very special caution” not to speculate and, rather, to base their conclusions on the trial evidence and nothing else. It follows that I would not give effect to this ground of appeal.

THE SENTENCE APPEAL

[38] The trial judge sentenced the appellant to six months’ imprisonment and two years’ probation. The appellant submits that the term of imprisonment should be varied to a conditional sentence. At the time of the trial earlier this year, the appellant was 51 years of age. He has no criminal record. He had been a schoolteacher for almost thirty years but was suspended when these charges were laid. He takes care of his elderly mother and manages rental units that she owns.

[39] The trial judge gave extensive consideration to the defence submissions concerning the suitability of a conditional sentence. In my view, in the course of considering a conditional sentence, he erred in principle in one respect. He said the following:

The present case, in my view, warrants a term of imprisonment in an institution principally because of the breach of trust and to a certain extent lack of remorse. The accused certainly has the right to maintain his innocence and he can do so even after a court, here composed of a jury of his peers, found him guilty. The trouble is that always effects the question of risk and security of society. When a person does not show remorse for activities or offences committed, then at that point I agree with defence that you can’t give him credit as such or take that into account when you are looking at the term of incarceration. However, it does, in my view, affect the factor of safety of the community and whether or not there is a risk of re-offending. So, in my view the term of incarceration will address both the deterrence factors and the other factors I have referred to, being general and specific deterrence and denunciation. [Emphasis added.]

[40] Courts must be circumspect in using a perceived lack of remorse as evidence of future dangerousness. [^4] There was nothing in this case to show that the appellant, because he lacked remorse, would commit further offences while serving a sentence in the community. In R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at 482–84, Lamer C.J.C. examined the factors to be considered in assessing whether the safety of the community would be endangered by a conditional sentence. He gave particular attention to the risk of re-offence and generally approved of cases where courts enumerated such objective factors as the offender’s prior record, record of compliance with court orders, the nature of the offence, the degree of participation, lifestyle, mental state and conduct while on judicial interim release. Using these more objective criteria I think it unlikely that the appellant would be a danger to the community while serving a conditional sentence in the community.

[41] To the extent that the trial judge may have erred in considering lack of remorse as a factor in assessing future risk to the community, the effect of this error was, in my view, inconsequential. A fair reading of the trial judge’s reasons indicates that the principal

[42] factors for rejecting a conditional sentence were the seriousness of the conduct and the high moral culpability of the accused. The appellant was a mature offender. The complainant’s foster mother had trusted the appellant sufficiently to put this vulnerable boy in his care on many occasions. On two of those occasions, the appellant abused that trust. The fact that the abuse was not as intrusive as has been seen in many other cases was reflected in the relatively short period of imprisonment. While less deference is due the trial judge’s decision because of the error in principle, I am nevertheless satisfied that the sentence imposed was not unfit.

DISPOSITION

[43] Accordingly, I would dismiss the appeal from conviction. While I would grant leave to appeal sentence, I would dismiss the appeal from sentence.

(signed) “M. Rosenberg J.A.”

(signed) “I agree M. A. Catzman J.A.”

(signed) “I agree M. J. Moldaver J.A.”

RELEASED: October 9, 2001 “MAC”

[^1]: A conviction for sexual assault arising out of the same events was stayed in accordance with the rule against multiple convictions.

[^2]: See the article by A. Palmer, “Guilt and the Consciousness of Guilt: The Use of Lies, Flight and other ‘Guilty Behaviour’ in the Investigation and Prosecution of Crime”, (1997), 21 Melbourne University Law Review 95, referred to in the Commission Report at pp. 1144-47.

[^3]: R. v. Baron and Wertman was decided before R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 at 391 where the Supreme Court explained that Crown evidence is inadmissible if its prejudicial effect outweighs its probative value. It is not necessary that the probative value be “slight” and the prejudicial effect “great” to warrant exclusion.

[^4]: That is not to say that failure to accept responsibility may not be a factor where treatment may be necessary to control future dangerousness.