DATE: 20020626
DOCKET: C36057

COURT OF APPEAL FOR ONTARIO

LASKIN, ROSENBERG and GOUDGE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

D.B.

Appellant

Joan Barrett, for the respondent

Brian H. Greenspan, for the appellant

Heard: April 5, 2002

On appeal from the conviction imposed by Justice Robert N. Weekes dated January 18, 2001.

BY THE COURT:

[1] The appellant appeals from his conviction by Weekes J. on one count of touching for a sexual purpose and two counts of sexual assault. The trial judge stayed three other related charges in accordance with the Kienapple principle. The complainant on all of the charges was the nine-year-old son of the appellant’s former girlfriend.

[2] The principal ground of appeal can be summarized as follows. The appellant submits that the trial judge applied a different standard of scrutiny to the evidence of the appellant then to the evidence of the important Crown witnesses, the complainant and his parents. In his very thorough and helpful submissions, Mr. Greenspan, on behalf of the appellant, argues that the trial judge subjected the appellant’s evidence to strict scrutiny and reached an adverse finding of credibility based on minor inconsistencies. On the other hand, it is alleged that the trial judge dismissed serious inconsistencies in concluding that the Crown’s witnesses were credible.

[3] We have carefully considered the entire record in this case and have concluded that the trial judge made no reversible error. There was ample reason to disbelieve the appellant. He changed his evidence on important matters, lied and exaggerated about critical matters. The record fully supports the trial judge’s assessment of the appellant’s credibility. In contrast, the inconsistencies among the principal Crown witnesses were minor and it was open to the trial judge to accept their evidence and therefore find that the offences had been made out.

[4] The trial judge singled out approximately a dozen instances where the appellant either contradicted himself in the course of his evidence or where his testimony was contradicted by other credible evidence. Mr. Greenspan reviewed each of these matters to demonstrate that either there was no contradiction or the matter was minor. We will examine several of the most important. We do not accept the appellant’s characterization of these various matters. Although some are minor and of little import, for example the nature of the appellant’s daughter’s disability, most were important when considered in the context of the issues in the case. In any event, as observed by the trial judge, it is the cumulative effect of these various inconsistencies, exaggerations and contradictions that seriously undermined the appellant’s credibility.

THE FACTS

[5] The allegations against the appellant may be briefly summarized as follows. The complainant’s mother Mrs. P. first met the appellant many years earlier. In the interim, Mrs. P. married Mr. P. and had two children with him: a teenaged daughter and the complainant, who was eight or nine years of age at the time of the offences. Mr. and Mrs. P. separated in 1993 or 1994 but Mr. P. continued to see the children. In 1997, the appellant and Mrs. P. became reacquainted. They dated casually in 1997 and in 1998 the appellant moved in with her. The appellant was often away from Mrs. P.’s home because of his employment with C.N. Rail and because of their frequent arguments. In November 1998, the appellant finally moved out of Mrs. P.’s home and thereafter lived in a nearby motel. In January 1999, with the assistance of the police, the appellant recovered his belongings from Mrs. P.’s home.

[6] In February 1999, the appellant and Mrs. P. briefly reconciled and the appellant spent the weekend at Mrs. P.’s home. Because of a remark the appellant made at this time, Mrs. P. questioned her son about whether the appellant had molested him. After some questioning, the complainant acknowledged that on one occasion the appellant had sexually assaulted him. Mrs. P. spent the night with her son and the following day she went to the police. A police officer and social worker interviewed the complainant that afternoon and the police laid charges relating to the single incident disclosed by the complainant. Some time prior to the preliminary inquiry, the complainant disclosed two further instances of abuse. In his evidence, the complainant explained why he did not complain immediately to his mother or father. The appellant had told the complainant that people would think he was gay.

[7] The three incidents described by the complainant involved different sexual acts. On one occasion, while he and the appellant were in the living room, the appellant grabbed him and forced him to masturbate him. On a second occasion, the appellant pulled the complainant’s pants down and the complainant felt something hard in his “butt”. After this incident, the complainant told his mother that his “butt” hurt but he did not tell her why. Mrs. P. confirmed the complainant telling her this but she did not realize its importance at the time. This incident also occurred in the living room. The third incident occurred in the complainant’s bedroom on his bed. The complainant slept in a bunk bed. He claimed that the appellant kneeled over him and forced him to perform fellatio on him.

[8] The complainant was 11 years of age when he testified at trial. He was vague about the timing of the incidents and the order in which they occurred.

THE TRIAL JUDGE’S ASSESSMENT OF CREDIBILITY

[9] In considering the appellant’s submissions concerning the trial judge’s approach to the evidence, it is important to keep the context in mind. The theory of the defence was that Mr. and Mrs. P. fabricated these incidents and influenced the complainant to make the false allegations. The motive for this conduct by the complainant’s parents was never entirely clear, but there was evidence of some hostility towards the appellant on Mr. P.’s part and the relationship between Mrs. P. and the appellant was at best a stormy one.

[10] As indicated, we do not propose to review all of the matters relied upon by the trial judge. Rather, we will deal with what we consider to be the most important problems with the appellant’s evidence and the most important factors relied upon by the appellant to undermine the prosecution case.

Destruction of the appellant’s property

[11] As indicated, in January 1999, the appellant recovered his personal property, including some expensive furniture, from Mrs. P.’s home. His father and a police officer assisted him. The appellant initially testified that the various items were destroyed resulting in a $20,000 loss. In cross-examination, he said the damage was between $3,000 and $5,000. The police officer who accompanied the appellant testified that he did not notice any damage.

[12] The appellant submits that this was at worst simply exaggeration and not a matter of any gravity. We do not agree with that characterization. The appellant made these allegations about his property for a reason. He was attempting to demonstrate Mrs. P.’s hostility towards him and thus to support the motive for fabricating the allegations. Thus, he also alleged that when he recovered his possessions Mrs. P. yelled at him, “What goes around comes around.” When the appellant was pressed in cross-examination about the damage to his property, he started to hedge his evidence and recant some of his evidence in chief. This was not simply a minor exaggeration on an unimportant event. It was an important part of the appellant’s story and was demonstrably wrong. The evidence surrounding this incident shows that the appellant was prepared to make unsupported allegations against Mrs. P. in an effort to bolster his own position.

The genital rash

[13] The trial judge referred to the appellant’s inconsistent testimony about a genital rash he claimed to suffer from. In examination in chief, the appellant testified that the rash was a problem even in winter and that he shaved the genital area year round so that he could better treat it. In cross-examination, however, when presented with evidence suggesting that his testimony about the rash could not be true, the appellant claimed that the rash was not very bad in winter and that he did not shave the genital area in winter.

[14] These were not minor matters. The appellant adduced the evidence about the rash to demonstrate that if the sexual assaults had really occurred, especially the bunk bed incident, the complainant would have seen this very serious condition. The appellant’s testimony about the seriousness of the rash was demonstrably false. Even the physician he called to support his testimony contradicted the appellant and indicated that the condition was easily and quickly cured by application of a prescription ointment and did not leave the kind of permanent scarring claimed by the appellant. It was open to the trial judge to conclude that the appellant had fabricated his testimony about the rash in an attempt to undermine the complainant’s evidence.

The nature of the reconciliation

[15] The appellant initially testified that the reconciliation with the complainant’s mother in February 1999 was very positive. He was then pressed by Crown counsel about why Mrs. P. spent the last evening with the complainant and not with him if matters were going so well. The appellant then changed his testimony and described three days in which Mrs. P. was drunk and becoming increasingly more violent towards him. The trial judge relied upon these inconsistencies.

[16] The appellant submits that in reality there was no inconsistency; that the appellant actually believed that the reconciliation was working although there were some incidents that were typical of the stormy relationship. We do not accept that characterization. It is quite apparent that the appellant was prepared to change his testimony in an attempt to try to meet the Crown’s case. The different positions taken by the appellant in his testimony are simply irreconcilable. Again this was not an insignificant matter. The events on the final day of the reconciliation were a crucial part of the case. On the Crown’s theory, this is when the complaint was made. On the appellant’s theory, this is when Mrs. P. fabricated the first allegation and convinced her son that the appellant had assaulted him.

Mrs. P.’s care of the complainant

[17] The trial judge noted that in examination in chief the appellant testified that Mrs. P. neglected the complainant, for example, she never gave him a lunch to take to school. The appellant also testified that the room where the complainant slept was like “Amityville Horror” because of the amount of blood on the sheets and the bed from the complainant’s frequent nose bleeds. The appellant later admitted that he really did not know that Mrs. P. neglected the complainant. His evidence about the state of the room was at best exaggerated if not simply false.

[18] These were not minor matters. The appellant gave this evidence to discredit Mrs. P. Her credibility was crucial to the Crown’s case since she had elicited the initial disclosure of sexual abuse and could confirm that the complainant had earlier complained of a sore anus. The appellant’s attempt to impair Mrs. P.’s credibility by fabricating evidence was indeed a serious matter.

The motel incident

[19] One of Mr. Greenspan’s most important examples supporting the submission that the trial judge applied a more relaxed level of scrutiny to the testimony of the Crown witnesses concerned an incident at the motel where the appellant lived after the break-up in November 1998 and after the failed reconciliation in February 1999. The appellant testified that in March 1999, after the first charge was laid, Mrs. P. came to the motel and stood outside his door crying and pleading and saying that the complainant had admitted he lied. According to the appellant she stood there for about two and a half hours. Mrs P. had been cross-examined about this incident. She admitted that sometime in March she did go to the motel because she wanted an explanation from the appellant about why he did this to her son. She knocked at his door and, receiving no reply, left after a few minutes.

[20] The appellant submits that the trial judge failed to consider the impact of important evidence given by the defence witness Mr. Stewart that contradicted Mrs. P.’s evidence. The trial judge did note that Mr. Stewart testified that he saw a woman outside the motel room and that she might have been there for about two and a half hours. The appellant also submits that the trial judge was unfairly critical of the appellant’s version of this event simply because he kept changing his estimate of the time Mrs. P. was there.

[21] In our view, there is no basis for criticizing the trial judge’s approach. Mr. Stewart’s evidence does not have the impact that the appellant claims. Mr. Stewart did testify that he saw a woman standing outside the appellant’s room for about three hours. However, he also testified that the woman did not say anything and was not creating a scene as alleged by the appellant. Moreover, Mr. Stewart put the incident in January, before the complaint. Thus, Mr. Stewart’s evidence does not affect Mrs. P.’s credibility.

[22] On the other hand, the impact on the appellant’s testimony was potentially significant. The appellant was using this incident to allege a recantation by the complainant after the charge was laid. Mr. Stewart’s evidence did not support the appellant’s story, since according to his testimony, the incident occurred before the charge was laid. Indeed, this defence witness actually undermined the appellant’s story by testifying that, while he was at motel most of the time in February and March, he never saw the woman there again after the January incident.

The timing of the assaults

[23] The appellant submits that the trial judge failed to take into account that Mrs. P. lied about her employment during the summer of 1998 and that Mr. P. admitted that the children stayed with him during the summer. This evidence is important since it shows that the appellant did not have the opportunity to commit the offences.

[24] We agree with the appellant that Mrs. P. did change her testimony about the number of days she worked in the summer. However, we do not accept that it had the effect of undermining the Crown’s case. The complainant was not able to put a precise date on the assaults. He testified that one of them may have been during summer vacation but thought one of the other assaults took place in spring. Mr. P. did testify that the children were with him during the summer of 1998, but not the entire time.

[25] In any event, on the appellant’s own evidence there was opportunity for him to commit the offences. He testified that he was alone with the complainant on several occasions in the spring of 1998. He confirmed that the complainant was in Mrs. P.’s home in the summer of 1998 and, for example, witnessed several verbal altercations between him and Mrs. P. around that time. The appellant’s trial counsel (not Mr. Greenspan) conceded that the appellant had the opportunity to commit the offences, notwithstanding Mr. P.’s evidence. In those circumstances, it is not surprising that the trial judge did not give much attention to this issue.

The bunk beds

[26] After the appellant was informed of the nature of the allegations, he took steps to try and establish his innocence. In particular, he obtained the measurements of the bunk beds from the manufacturer. He relied upon those measurements to show that it was improbable, if not impossible, for the bunk bed incident to have occurred. The trial judge dealt expressly with this issue and after reviewing the evidence concluded that while “[i]t would have been cramped … the space was there”. The trial judge was in the best position to make that determination, particularly since a demonstration was conducted during the appellant’s testimony.

Conclusion

[27] In our view, this is a sufficient review to demonstrate that the trial judge’s assessment of the credibility of the various witnesses is supported by the record and that he did not apply an unfairly rigorous standard to the appellant’s evidence. We would therefore not give effect to this ground of appeal.

REPLY EVIDENCE

[28] In his factum, Mr. Greenspan submitted that the trial judge erred in permitting the Crown to call reply evidence. No objection was taken to this evidence at trial and the trial judge made no mention of it in his reasons. Mr. Greenspan candidly acknowledges that in circumstances, standing alone, any error with respect to the reply evidence would not justify a new trial.

DISPOSITION

[29] Accordingly, the appeal from conviction is dismissed

RELEASED: June 26, 2002

“Rosenberg J.A.”

“I agree Laskin J.A.”

“I agree Goudge J.A.”