Court of Appeal for Ontario

DATE: 20020208 DOCKET:C33650

ROSENBERG, GOUDGE AND FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Timothy E. Breen for the appellant

Respondent

• and -

ANDRE M. (a young person)

Erin MacCarthy for the respondent

Appellant

Heard: January 8, 2002

On appeal from the conviction imposed by Justice K. P. Evans dated December 7, 1999 and from the sentence imposed by Justice K. P. Evans dated February 9, 2000.

Reasons for Decision

GOUDGE J.A.:

[1] On December 7, 1999, the appellant appeared in Youth Court for trial on an information charging him with sexual assault, touching for a sexual purpose, and inviting a person under 14 years of age to touch him for a sexual purpose. All three counts arose from a single encounter with the complainant, S.C., on January 27, 1999.

[2] The appellant was found guilty on all counts. Counts two and three were stayed pursuant to the rule in Kienapple. On February 9, 2000 the appellant was ordered to serve three months in secure custody followed by a 20-month period of probation.

[3] The appellant appeals against both conviction and disposition. For the reasons that follow, I would dismiss his appeal.

[4] The charges relate to an allegation that the appellant fondled the complainant after school in a neighbour’s garage. The complainant was 13 years old at the time. She gave evidence that for a period of time during the preceding summer she and the appellant had been seeing each other, although they were not girlfriend and boyfriend. In his evidence the appellant acknowledged having kissed the complainant but maintained that he had done so at her invitation.

[5] The appellant challenges his conviction on two bases. First, he says that the trial judge misapprehended the evidence in three ways. Second, he seeks to tender fresh evidence of what he says is a prior inconsistent statement made by the complainant.

[6] In arguing misapprehension of the evidence, the appellant says that the trial judge erred in treating the appellant’s acknowledgement that he was wearing boxer shorts on January 27, 1999 as confirming the complainant’s evidence. I disagree. The complainant testified that during the encounter the appellant pulled down his pants and boxer shorts. It was January and the appellant testified that he was wearing a winter coat. In these circumstances, it was quite open to the trial judge to conclude that the fact that the appellant was indeed wearing boxer shorts that day strengthened his belief that the complainant was telling the truth. This conclusion is not undermined by the fact that the appellant and the complainant had had a prior relationship.

[7] Then the appellant argues that the trial judge erred in finding that the evidence of the appellant’s mother was of no help since it related to matters extraneous to those he had to decide. The appellant says that her evidence supported the conclusion that the complainant had falsely accused the appellant of theft of money from the complainant’s home the previous summer. I do not agree. The mother’s testimony was that the complainant had confirmed to her that the complainant had accused the appellant of stealing money. At trial, the complainant maintained in her own testimony that the appellant had done so, something which the appellant denied. The mother’s evidence did not support the conclusion that the complainant’s accusation was false and did not detract from the complainant’s evidence. The trial judge did not err in saying that he found it unhelpful in resolving the essential issue of credibility between the complainant and the appellant.

[8] Finally, the appellant says that the trial judge erred in finding that the complainant’s discipline problems at home played no role in the case before him. Again I disagree. The complainant’s problems at home could not be said to provide her with any motive to report a fabricated complaint. To the contrary, by reporting as she did, the complainant revealed that she had voluntarily gone to the neighbour’s house when according to family rules she was supposed to be at home.

[9] I therefore find no merit in the appellant’s assertion that the trial judge misapprehended the evidence.

[10] The fresh evidence that the appellant seeks to introduce in this court is of J.R., a friend of the complainant. That evidence is that after hearing a rumour that the appellant had raped the complainant, J.R. telephoned the complainant to ask her about it and was told that it hadn’t happened. J.R. understood this to mean only that the appellant had not raped the complainant.

[11] In my view, the proposed fresh evidence does not meet the test in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759. In particular, even if believed, this evidence could not be expected to have affected the result. At trial, the complainant did not claim that the appellant had raped her. The sexual assault she described did not involve sexual intercourse at all. Evidence of the complainant’s prior denial of rape would not have affected the outcome. Thus, this ground of appeal also fails.

[12] As to the disposition made by the trial judge, the appellant challenges the custodial sentence in particular. In my view, it reflects no error in principle and is not unfit. The trial judge took account of the appellant’s age, his potential for rehabilitation, and the absence of a prior record. Particularly in light of the appellant’s persistence in pursuing the attack in an open garage, exposed to the public, the coercion he used on the complainant, his taunting of her after the fact and the great harm the event has inflicted on her life, it was open to the trial judge to conclude that the appellant posed a sufficient danger that deterrence and denunciation required a custodial sentence.

[13] Therefore I would dismiss the appeal from conviction. I would give leave to appeal from disposition but would dismiss that appeal as well.

Released: February 8, 2002 “MR”

“S. T. Goudge J.A.”

“I agree M. Rosenberg J.A.”

“I agree K. Feldman J.A.”