DATE: 20020430 DOCKET: C35398
COURT OF APPEAL FOR ONTARIO
LASKIN, CHARRON and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Earl Fruchtman, for the respondent
Respondent
- and -
W.G.G.
Marie Henein, for the appellant
Appellant
Heard: April 8, 2002
On appeal from the conviction imposed by Justice Thomas G. Zuber dated October 17, 2000 and from the sentence imposed by Justice Zuber dated November 23, 2000.
CHARRON J.A.
[1] Following his trial by judge and jury, the appellant was convicted of two counts of indecent assault on his two step-daughters. The offences related to numerous incidents occurring between 1975 and 1980 when the appellant lived with the complainants and their mother. The complainants were elementary school children at the time of the offences. The appellant was sentenced to 90 days’ imprisonment, to be served intermittently, and two years probation. He appeals against his conviction and seeks leave to appeal his sentence. In my view, there is no basis to interfere with either the conviction or the sentence. My reasons are as follows.
[2] The appellant raises three grounds of appeal against conviction. The first ground of appeal relates to the trial judge’s use of the evidence on each count in support of the evidence on the other. The trial proceeded on a two-count indictment, one in relation to each complainant. In arriving at his verdict, the trial judge expressly made such use of the evidence as one of the bases for his decision. He stated as follows:
Secondly, I find the evidence that emanated from two of these women was mutually confirmatory. A pattern of abuse of each of the girls was about the same. So the evidence of each is admissible in both charges as being part of a pattern of behaviour by this accused.
[3] The appellant submits that, in the absence of a ruling that the evidence of each complainant constituted similar fact evidence in respect of the other, the trial judge was not entitled to find that their evidence was mutually confirmatory. Since neither counsel at trial made submissions on this issue, it is submitted that the trial judge erred in making such use of the evidence on his own motion. It is further argued that this error is fatal to the conviction because the evidence did not meet the test for admission of similar fact evidence.
[4] It would undoubtedly have been preferable if the trial judge had sought the submissions of counsel on this issue and then had included his analysis as part of his reasons. However, in the circumstances of this case, it is my view that his failure to do so was an irregularity only and did not constitute reversible error.
[5] There were significant similarities between the allegations of the two complainants. Their evidence disclosed a pattern of frequent touching of a sexual nature by the appellant in very similar circumstances. The appellant correctly notes the presence of two factors that could potentially undermine the probative value of the witnesses’ evidence: some inconsistencies in their evidence and the opportunity for collusion. However, I am are not persuaded on the record that those features of the evidence detracted in any meaningful way from the probative value of the evidence. The record discloses that the possibility of collusion, if it was an issue at all, did not form a significant part of the defence at trial. The inconsistencies in some of the detail provided by the witnesses, with respect to incidents that happened more than twenty years earlier, are of the kind one would reasonably expect to occur with the passage of time and further belie the suggestion that their evidence was the product of collusion.
[6] In my view, the probative value of the evidence on each count with respect to the other clearly outweighed the potential prejudice that could arise from its admission. Consequently, I am not satisfied that the trial judge made any improper use of the evidence. I would not give effect to this ground of appeal.
[7] The second ground of appeal also relates to the trial judge’s assessment of the credibility of the complainants. In his factum, the appellant alleged that the trial judge erred in relying on the complainants’ demeanour “alone” to determine credibility, and that he further erred in considering the rejection of the appellant’s testimony as “an additional piece of evidence”. Counsel for the appellant pursued this ground of appeal in oral submissions, albeit in modified form. The record does not in any way support these contentions..
[8] The trial judge was entitled to consider the demeanour of each complainant in assessing credibility. His reasons make it clear that his findings were not based on demeanour alone. Further, it was open to the trial judge to reject the appellant’s explanation of his statements to the police and to use the statements as substantive incriminating evidence against him. I see no merit to this ground of appeal.
[9] The final ground of appeal against conviction relates to the dismissal of the appellant’s application for the production of records in the possession of the Children’s Aid Society (“CAS”) and the Maryvale Facility at the Windsor Western Hospital psychiatric ward.
[10] The application at trial was determined on the basis of the current legislative scheme and substantial reliance was placed on this court’s decision in R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (Ont. C.A.). The trial judge found that essentially nothing more was established on the application than the fact that statements about the allegations were made by each complainant to the third parties in question. He concluded that the defence had failed to show the likely relevance of the record; consequently, he dismissed the application.
[11] The appellant concedes that the application was properly dismissed with respect to the records of one of the complainants. He contends, however, that the trial judge should have ordered the production of the records relating to the second complainant for review by the court. It is submitted that the records were likely relevant because: a) the complainant’s own review of the CAS records precipitated her decision to go to the police; b) she signed an authorization allowing the police to review her records, thereby reducing her expectation of privacy; and c) the record revealed an inconsistency between the complainant’s testimony at the preliminary hearing and her mother’s statement as it related to her daughter’s disclosure of the abuse.
[12] I do not agree that any of these three grounds can satisfy the test. With respect to the first one, the record discloses that during cross-examination at the preliminary hearing, the complainant testified that she had received counselling at the Sexual Assault Crisis Centre. During the course of the counselling, a question arose as to why these matters had never been dealt with by the police. This question prompted the complainant to review her file at the CAS. Her review confirmed that the police had not been contacted by the CAS. This discovery in turn prompted her decision to go to the police with the complaint that formed the subject-matter of the charge against the appellant. There was no suggestion on the evidence that, beyond the fact that the police were not contacted by the CAS, the contents of the record played any part in the complainant’s awareness or memory of the sexual abuse or was otherwise of any relevance to an issue in the trial.
[13] Second, the fact that the police had reviewed the records with the complainant’s authorization had no bearing on her expectation of privacy as it related to the appellant: see R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 at paras. 107-08. Counsel for the appellant conceded that the complainant’s expectation of privacy in the records remained a live issue for determination on the application.
[14] Finally, the alleged inconsistency between the complainant’s evidence on the preliminary hearing and her mother’s statement with respect to the disclosure of the abuse cannot assist the appellant. At best, this could lead to the speculation that the record may disclose a prior inconsistent statement by the complainant. Subsection 278.3(4)(d) specifically provides that such an assertion by an accused is not sufficient to establish likely relevance. Crown counsel also correctly points out that this assertion was not relied upon at trial and that s. 278.3(3)(b) requires that the grounds relied upon to establish likely relevance be set out in writing in the application.
[15] Hence, it is my view that there is no basis for interfering with the trial judge’s dismissal of the application. The appellant did not satisfy the requirements under s. 278.5(1). Before production for review by the court can be ordered, the court must be satisfied that: the application is made in accordance with subsections 278.3(2) to (6); the record is likely relevant to an issue at trial or to the competence of a witness to testify; and the production of the record is necessary in the interests of justice. The trial judge was correct in dismissing the application on the basis that likely relevance had not been established. Further, one of the grounds sought to be relied upon on appeal was not set out in the application in accordance with the statutory requirements.
[16] For these reasons, I would dismiss the appeal against conviction.
[17] The sole ground of appeal on sentence relates to the fact that the appellant was diagnosed with sleep apnea in 1992, such that he requires the use of a Continuous Positive Airway Pressure machine at night. He contends that his incarceration may interfere with the use of this equipment because of the risk that the long extension cord between his cell and the electrical outlet may accidentally be interfered with during the night. It is therefore submitted that the trial judge erred in concluding that a conditional sentence of imprisonment could not satisfy the denunciation concern.
[18] I see no merit to the sentence appeal. The appellant’s condition was known long before the sentence hearing yet no reference was made to it despite the very real risk that the sentence would result in imprisonment. Further, counsel confirms in her submission that the appellant’s condition was effectively accommodated without any problem during the time he spent in custody before his release pending his appeal. I would not grant leave to appeal against sentence.
RELEASED: April 30, 2002
“Louise Charron J.A.”
“I agree John I. Laskin J.A.”
“I agree Robert P. Armstrong”