DATE: 20020603 DOCKET: C36532

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. R.F. (Appellant)

BEFORE:

O’CONNOR A.C.J.O., CRONK and ARMSTRONG JJ.A.

COUNSEL:

Michael Lomer

for the appellant

Erin MacCarthy

for the respondent

HEARD:

May 22, 2002

On appeal from the conviction entered by Justice G.I. Thomson dated October 18, 2000 and the sentence imposed dated December 22, 2000.

E N D O R S E M E N T

[1] [1] The appellant was convicted of one count of sexual touching and sentenced to a term of imprisonment of two years less one day to be followed by a period of probation of three years. The complainant was the appellant’s five year old stepdaughter. The appellant appeals the conviction and argues that the trial judge made three errors.

Failure to Warn

[1] [2] The appellant submits that the trial judge erred in failing to warn himself adequately about the frailties of the complainant’s evidence. Although the trial judge did not specifically say that he was giving himself a Vetrovec kind of caution, he carefully considered the weaknesses and inconsistencies of the evidence and was alive to the risks inherent in the evidence. We see no merit to this ground of appeal.

Confirmatory Evidence

[2] [3] The complainant was five years of age at the time of the alleged offence and six years at the time of the trial. Her evidence was received on a promise to tell the truth. She testified that she had used her hand and moved it back and forth on the appellant’s penis. The complainant’s mother gave evidence that within a period of about one month after the alleged incident, the complainant made a motion with her hand moving it up and down towards her vagina. This was the first time the mother had heard anything about inappropriate behaviour. The trial judge found that the evidence of the hand movements “was somewhat confirmatory of the complainant’s evidence”.

[3] [4] The appellant contends that the trial judge erred in attaching any weight to this evidence. We disagree. The defence did not object to its admissibility. Moreover, the defence at trial cross-examined the complainant in detail about a video statement made shortly after the hand movement incident and also about her evidence at the preliminary hearing. It was the defence’s position that no abuse had occurred and there were serious inconsistencies between what the complainant said at trial and what she had said on the earlier occasions. In these circumstances, it was open to the trial judge to consider the evidence of the hand movement.

Unreasonable Verdict

[4] [5] The appellant was charged with three offences: sexual assault, invitation to sexual touching and sexual touching. He was acquitted on the first two charges and convicted on the third. At trial, the complainant testified about many acts of sexual abuse, including fellatio, cunnilingus, buggery, intercourse and the manual rubbing of the appellant’s penis referred to above. She was thoroughly cross-examined. In many respects, her evidence was unsatisfactory. There were several inconsistencies, recantations and in one instance she said she had lied. The problems with her evidence related to the allegations of intercourse, buggery, cunnilingus and fellatio and the Crown Attorney fairly took the position at trial that these allegations had not been made out beyond a reasonable doubt. The trial judge accepted that position and made no adverse findings against the appellant regarding these matters.

[5] [6] In contrast, the complainant testified about the manual rubbing of the appellant’s penis in some detail and without the inconsistencies that tainted her other evidence. She described white stuff coming from the appellant’s penis that had little bubbles in it. She said that the white stuff dripped onto a chair and that they had put a napkin under it. She said that it looked gross. The trial judge found this evidence to be credible.

[6] [7] After carefully reviewing the evidence, the trial judge was satisfied that the complainant had not been influenced by outside sources regarding the manual rubbing of the appellant’s penis and had not been told to tell the details she gave in evidence. He accepted that the only way the complainant would be able to comment on these details was with her own experience. The trial judge had the obvious advantage of seeing and hearing the complainant directly. We are satisfied that it was open to him to accept this evidence. We therefore do not accept this ground of appeal.

Fresh Evidence

[7] [8] In addition to the grounds of appeal referred to above, the appellant brought a motion for the introduction of fresh evidence on this appeal. The circumstances are somewhat unusual. Some time after the trial was completed, counsel who was handling the appeal for the Attorney General informed the appellant’s counsel about an incident that had taken place outside the courtroom on the day that the complainant was giving evidence. The Crown Attorney at trial told appellate counsel that at the lunch break he had a conversation with the complainant’s mother near the coffee kiosk in the courthouse. The Crown Attorney’s recollection was that this conversation took place after the completion of the complainant’s evidence in-chief but before her cross-examination had begun. In response to a question from the mother about how the complainant had done in giving her evidence, the Crown said that if he was the trial judge he would not find the accused guilty beyond a reasonable doubt. The mother became frustrated, walked over to the complainant who was nearby and yanked her by the arm. The mother and the complainant went off to have lunch together.

[8] [9] Initially there was a concern that because this incident was thought to have occurred before the cross-examination of the complainant there had been an opportunity for the mother to coach her daughter for the upcoming cross-examination. It was during the cross-examination of the complainant that she gave several of the detailed answers about the “white stuff” on which the trial judge relied in finding her evidence credible.

[9] [10] However, on further investigation, it was determined that the Crown Attorney was mistaken about the timing of the incident. In fact, the incident occurred either at the end of the day after the complainant had completed her evidence or during a short break in the middle of her cross-examination. That break took place after the complainant had finished giving all of the evidence on which the trial judge relied in making his finding of credibility. Thus, the fresh evidence does not raise a concern that the mother, having heard what the Crown Attorney said to her outside the courtroom, then coached her daughter to give what turned out to be the critical answers on cross-examination.

[10] [11] The application for admission of fresh evidence is based on a failure of the Crown to disclose the evidence about the incident involving the Crown, the mother and the complainant to the defence. The appellant accepts that the Crown’s failure to disclose this evidence was entirely innocent and attributes no impropriety to this failure. We agree with that position.

[11] [12] The proper test for admission of this type of fresh evidence on appeal is found in the decision of this court in R. v. Babinski (1999), 135 C.C.C. (3d) 1 (C.A.), per Rosenberg J.A. In summary, an appellant must demonstrate a violation of his right to disclosure by showing that there is a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence, or otherwise making a decision that could have affected the conduct of the defence. The appellant must then demonstrate on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose by showing that there is a reasonable possibility that non-disclosure affected the outcome at trial or the overall fairness of the trial process.

[12] [13] In our view, the appellant has not met this test. The fresh evidence establishes that on hearing that the complainant’s evidence had not gone well, the mother became frustrated and upset. The appellant argues that the mother’s frustration is evidence of animus towards the appellant and that it helps establish the appellant’s theory that she concocted the hand movement evidence referred to in paragraph 3 above. We do not agree. It would not be an unusual reaction for a mother in these circumstances to become upset, nor would it be unusual for a mother to have animus towards the alleged abuser of her daughter. The mother’s frustration described by the Crown Attorney is equivocal and does not provide any additional support for the appellant’s theory that the mother concocted her evidence. In our view, the evidence of the mother’s frustration falls short of meeting the test in Babinski.

[13] [14] The appellant also contends that the mother’s action in grabbing the complainant’s arm in the midst of this frustration is evidence of displeasure with the complainant’s performance as a witness. This, it is suggested, lends support to the appellant’s theory, that the mother had coached her daughter, albeit before the daughter’s evidence began, to give the evidence of the appellant’s sexual abuse. The trial judge fairly addressed the suggestion that the appellant had been coached by her mother with regard to the critical evidence about the hand manipulation of the appellant’s penis and concluded she had not. In our view, the evidence of the mother’s grabbing her daughter’s arm was open to many innocent interpretations and would have had no impact on the trial judge’s conclusion that the appellant had not been coached. We are not satisfied that there is a reasonable possibility that the non-disclosure of this evidence affected either the outcome or the fairness of the trial.

[14] [15] We would, therefore, dismiss the application to admit fresh evidence.

[15] [16] For the above reasons, the appeal is dismissed.

“Dennis O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”