DATE: 20020603 DOCKET: C35651

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. ERNEST ROBINSON (Appellant)

BEFORE:

DOHERTY, GOUDGE and MACPHERSON JJ.A.

COUNSEL:

Marie Henein and

Melanie Dunn

for the appellant

Susan M. Chapman

for the respondent

HEARD:

May 28, 2002

On appeal from the conviction entered by Justice T.A. Heeney, sitting with a jury, dated March 10, 2000 and the sentence imposed dated June 1, 2000.

E N D O R S E M E N T

[1]

[2] [1] The appellant was convicted of sexual assault and a related charge of sexual touching and sentenced to 1 year imprisonment and 2 years probation. He appeals his conviction and sentence.

[1] [2] The appellant and the complainant met on a chat line. The appellant was 42 years old and was a school teacher. The complainant was a 13 year old grade 8 student. On the chat line, the appellant pretended to be a seventeen year old high school football player.

[2] [3] The complainant testified that she eventually met the appellant in person in the fall of 1997 and saw him on several occasions between November 1997 and the end of March 1998. According to her, they had sexual intercourse at various places on several occasions over that time period.

[3] [4] The appellant admitted that he met the complainant through the chat line and spoke to her on the telephone at length on a regular basis for many months. He also admitted that he pretended to be a seventeen year old high school football player. He testified that he thought the complainant was nineteen or twenty years of age. The appellant insisted that he did not physically meet the complainant or realize her true age until March 20, 1998. On that occasion, he drove to the complainant’s home and took her to his apartment in London so that he could talk to her about her personal problems. The appellant was adamant that he did not engage in any kind of sexual activity with the complainant.

[4] [5] The appellant submits that the verdicts are unreasonable. As is usually the case with sexual offence prosecutions, the Crown depended largely on the evidence of the complainant. There were real problems with parts of her evidence. There were several potentially significant inconsistencies between her trial evidence and her earlier statements and testimony. Independent evidence produced by the defence established that the appellant was elsewhere on some of the dates on which the complainant said she had sexual activity with the appellant.

[5] [6] Despite these problems, however, we cannot say that the convictions were unreasonable. The complainant’s evidence was confirmed in some significant respects by the evidence of the appellant himself. Nor did the jury have to accept all of the complainant’s evidence. They could properly convict even if they doubted that all of the sexual activity described by the complainant in her evidence actually occurred or occurred on the dates to which she testified.

[6] [7] Not only was there evidence that confirmed important parts of the complainant’s evidence, but there were aspects of the evidence tendered by the defence which could well have caused the jury, acting reasonably, to totally reject exculpatory portions of the defence except where they were supported by independent evidence. For example, there was evidence from which the jury could infer that the appellant and his girlfriend tendered a forged receipt in an effort to establish an alibi for one of the relevant dates.

[7] [8] This was a classic case for a jury. Considering the entirety of the record, we cannot say that the verdicts returned by this jury were unreasonable.

[8] [9] The appellant next argues that the trial judge’s charge was skewed in favour of the Crown and led to an unfair trial. The appellant submits that while the trial judge took a very critical view of parts of the defence case, he took a very charitable view of apparent difficulties in the evidence of the complainant.

[9] [10] There is some merit to this submission. The trial judge did make certain critical comments about parts of the defence case. Those comments were closer to argument than to jury instruction. The trial judge did not, however, misstate the evidence or the law, and he repeatedly told the jury that it was their assessment of the evidence and the arguments that must prevail.

[10] [11] In addition, when considering whether the instruction was so unbalanced as to prejudice the appellant, it is significant that the trial judge did review the inconsistencies between the complainant’s evidence and her previous statements at length and on more than one occasion during the instructions. He also set out the position of the defence accurately and fully. Indeed, he went so far as to tell the jury that the complainant’s evidence stood alone and that it must be “scrutinized carefully”. In fact, the complainant’s evidence did not stand alone, but was supported in material respects by the evidence of the appellant.

[11] [12] While one or two passages from the instruction constituted argument and would have been better left unsaid, we are satisfied that considered in its totality the charge was fair and did not result in a miscarriage of justice. In reaching that conclusion, we observe that counsel, who vigorously represented the appellant, made no objection. Counsel’s silence is a helpful barometer of the fairness of the instructions.

[12] [13] The third ground of appeal arises out of the following instruction:

… Now S.A. is still a child, a young teenager. She’s fifteen and you should not assess her testimony by adult standards. You may not expect the evidence of a child to be as logical or as articulate as that of an adult. Furthermore she is testifying as to events that occurred when she was even younger, that is to say at age thirteen.

In general when witnesses are testifying with regard to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is describing. That is to say in the context of a person who is thirteen years old. Children may not be able to recount precise details the when and where of an event. This does not necessarily mean that they have misconceived what happened and who did the act. Remember though, that despite everything I just said the underlying standard of proof remains proof beyond a reasonable doubt.

[13] [14] The appellant argues that this instruction is appropriate in the case of young children or perhaps in the case of older children who are testifying about distant events. He contends, however, that it was not appropriate here where the complainant was a “somewhat sophisticated” thirteen year old who was testifying about events that were relatively recent.

[14] [15] It was appropriate for the trial judge to remind the jury of the complainant’s age and to tell the jury that her age was a relevant factor in assessing the significance of some apparent shortcomings in her evidence. No doubt, the jury would have done that in any event. It would have been better had the trial judge avoided any suggestion that “time and location” were “peripheral matters”. They were arguably central to the complainant’s story. In the end, however, and bearing in mind the closing words of the instruction above quoted, we are satisfied that the jury was not invited to apply an inappropriate standard in the assessment of the complainant’s evidence.

[15] [16] The conviction appeal is dismissed.

[16] [17] The appellant submits that the trial judge erred in principle in refusing to impose a conditional sentence because the appellant continued to maintain his innocence.

[17] [18] In his reasons, the trial judge observed that restorative justice, which is best served by a non-custodial sentence, can only operate where the wrongdoer acknowledges his crime and is motivated to overcome the problems underlying that offence. The trial judge observed that the appellant, as he was entitled to do, maintained his innocence. He then concluded:

Given the attitude of the accused, which he is entitled to maintain, … the restorative justice aspects of conditional sentencing do not appear to be achievable in this case.

[18] [19] Assuming without deciding that the trial judge erred in principle in concluding that the restorative principles of justice could not operate in this case, we are satisfied that a conditional sentence would not have been an appropriate disposition. This offence involved repeated sexual intercourse with a thirteen year old child by a school teacher. While there was no position of trust as between the complainant and the appellant, the appellant more than most people must understand the harm done to children by the kind of sexual conduct in which he engaged. There is also a predatory aspect to the manner in which the appellant initiated and maintained intensive contact with the complainant. A non-custodial sentence would have been inappropriate in the circumstances of this case. Considering the nature of the offence and the mitigating factors relating to the appellant, we think the sentence imposed was well within the appropriate range.

[19] [20] Leave to appeal sentence is granted, but the appeal is dismissed.

“Doherty J.A”

“S.T. Goudge J.A.”

“J.C. MacPherson J.A.”