DATE: 20020301 DOCKET: C34731

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. G.H. (Appellant)

BEFORE:

DOHERTY, WEILER and CHARRON JJ.A.

COUNSEL:

Leslie Maunder

for the appellant

Nadia Thomas

for the respondent

HEARD:

February 25, 2002

On appeal from the conviction entered by Justice G.R. Morin on December 3, 1999 and the sentence imposed dated February 4, 2000.

ENDORSEMENT

[1] The appellant was convicted of sexually assaulting his three young granddaughters.* The Crown’s case rested entirely on the evidence of the three complainants. The appellant testified and denied that he assaulted any of his granddaughters.

[2] The complainants made various statements concerning the alleged assaults. Some of these statements were inconsistent with the evidence given by the complainants at trial. Counsel for the appellant cross-examined on these inconsistencies at some length.

[3] There was evidence that the three sisters discussed the events surrounding the allegations and that two of the three significantly changed their stories some nine months after their initial statements to the police.

[4] In his instructions, the trial judge made it clear that the credibility of the complainants and the reliability of their evidence were crucial. He properly instructed the jury on the burden of proof as it applies where conflicting versions of events are given. The trial judge also instructed the jury as to the law applicable to prior inconsistent statements and reviewed the various statements made by the complainants. In the course of his review of the complainants’ evidence, the trial judge referred to the evidence which the appellant says demonstrates collusion amongst the three complainants. The trial judge did not specifically tell the jury that a finding that the complainants had jointly concocted or changed their version of the events would diminish their credibility and the reliability of their evidence.

[5] A trial judge is not required to repeat every argument made by counsel. The claim that the complainants had concocted and jointly revised their version of events was one of the many arguments counsel advanced in support of his position that the evidence of the complainants was not credible or reliable. Counsel made only brief reference to collusion in his closing address. As a matter of common sense, the jury would understand the effect of collusion on the complainants’ credibility and reliability.

[6] Defence counsel did not object to the trial judge’s failure to relate the allegation of collusion to the complainants’ credibility. No doubt, counsel was satisfied that his position was made clear in his closing address and that nothing said by the trial judge diminished the force of the argument he had put to the jury. The trial judge is entitled to look to counsel for assistance when determining which of various factual features pertinent to the issues are sufficiently important to the position of the defence to require their review by the trial judge. In the absence of any specific request that the trial judge relate the allegation of collusion to the complainants’ credibility, it cannot be said that he committed reversible error in failing to do so.

II

[7] In the course of their closing addresses, counsel for the appellant and the Crown made certain comments concerning the absence of evidence of any medical examination of the three complainants. The submissions by both counsel contained an element of speculation.

[8] Counsel for the appellant objected to Crown counsel’s remarks. The trial judge told the jury that there was “probably no evidence” to support Crown counsel’s remarks. The trial judge made no reference to the speculation underlying counsel for the appellant’s remarks. The trial judge also told the jury that, “I don’t think anything turns on it”. We agree with the trial judge’s assessment of the relative insignificance of the comments made concerning the absence of any medical examination of the complainants. We also think that his instructions concerning Crown counsel’s submissions were satisfactory and were consistent with the state of the evidence.

III

[9] The appellant also seeks leave to appeal sentence. The trial judge imposed sentences totalling 8 years. We see no error in principle in his reasons and we cannot say that the totality of the sentences imposed is clearly excessive. The appellant was the grandfather of the three young victims and was in a position of trust. While the children were under his care, he abused that trust in an egregious way. The assaults were among the most serious that can be committed. One involved rape and another, the penetration of the victim’s anus. The appellant was convicted in 1990 of gross indecency with his own daughter and sentenced to 17 months in jail. These factors combine to justify the lengthy sentence imposed by the trial judge.

[10] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the appeal is dismissed.

“Doherty J.A.”

“K.M. Weiler J.A.”

“Louise Charron J.A.”

• A non-publication order respecting the identity of the complainants was made at trial and continues in effect.