DATE: 20020618
DOCKET: C36842

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– R.H.B. (Appellant)

BEFORE:

CATZMAN, WEILER and FELDMAN JJ.A.

COUNSEL:

William J. Glover, for the appellant

David Finley, for the respondent

HEARD:

June 12, 2002

RELEASED ORALLY:

June 12, 2002

On appeal from the conviction imposed by Justice John F. McGarry, sitting with a jury, dated June 19, 2001 and from the sentence imposed by Justice McGarry dated July 17, 2001.

E N D O R S E M E N T

[1] The appellant appeals his conviction on four counts of indecent assault and, if necessary, also seeks leave to appeal the sentence imposed.

[2] All of the grounds of appeal with respect to conviction relate to the judge’s charge to the jury.

1. Whether the judge adequately corrected the error in his charge to the jury that this was a case in which they had to decide whom to believe

[3] Very shortly after he had completed his charge, the trial judge recharged the jury and told them:

Just two points ladies and gentlemen, and I am not sure that they need clarification but just out of an abundance of caution. The test in a criminal case is not who you believe, in other words whether it is the crown witness versus the accused, if you believe the crown witness then you have to convict or if you believe the defence you have to acquit. It is not that test. It is when you look at the evidence you have to be satisfied beyond a reasonable doubt that the complainant’s evidence is accurate. If you listen to the accused and you are satisfied that he is telling the truth then, of course, that is an acquittal. If you listen to the accused and it raises a reasonable doubt, there is an acquittal. And that is really, those are the tests.

The bottom line is if, after considering all of the evidence you are not sure who to believe, then also you must acquit. So, I believe I left that out, the reasonable doubt.

[4] The appellant submits that the judge’s preface to his recharge in which he said that he was not sure he needed to clarify his comments but was going to do so out of an abundance of caution minimized the instruction that followed it. Consequently, the appellant submits that the recharge was inadequate. We disagree. In his earlier charge to the jury, the judge had also told the jury that if they did not believe the evidence of the accused but were left in reasonable doubt by his evidence they must acquit. This instruction indicated that the test was not a straight credibility contest. No doubt it was with this instruction in mind that the trial judge made his comment. The recharge was very clear. The jury would not have been in any doubt as to what they were to do in the event that they were uncertain as to whom to believe.

2. The trial judge’s statement to the jury that identity was not in issue

[5] The trial judge told the jury that it was acknowledged that if the indecent assaults occurred, then the accused was the perpetrator. Further, at one point in his charge, the trial judge told the jury that there was no evidence to suggest that the complainant’s father was the perpetrator and that to do so would be speculating and they “should not go there”. The Crown concedes that the trial judge’s comments did not reflect the position taken in the defence submissions but submits that the complainant gave positive evidence that her father could not have been the perpetrator.

[6] The list of factors upon which the appellant relies in support of his position that the jury could have had a reasonable doubt as to whether the complainant’s father committed the offences all relate to the first count of indecent assault. In fact, the complainant’s father was dead when the last indecent assault is alleged to have taken place. The trial judge told the jury that they were to consider the evidence with respect to each of the four counts of indecent assault separately. There is, however, no evidence to suggest that one perpetrator could have assaulted the complainant on the first occasion and a different perpetrator assaulted her on the fourth occasion. Having regard to the progressive nature of the alleged assaults, the fact the complainant’s father was dead when the fourth alleged assault took place and the conduct of the trial, the trial judge’s comment could not possibly have affected the jury’s verdicts.

3. Whether the trial judge erred in his charge to the jury respecting reasonable doubt

[7] At the opening of his charge to the jury, the trial judge stated:

Ladies and gentlemen, first of all I would like to thank you for participating in this trial. I watched your faces at the end of the day yesterday and I think there was a bit of a shock that “this is all the evidence we are going to hear on this trial and we are going to have to make a decision on this evidence,” and that is it. That is the decision that you are going to have to make today, and it is not going to be an easy decision. But, as I indicated to you at the outset, we have to make these judgement calls based upon the evidence we have, and sometimes when it is historical assaults, or any assault, sexual assault, of course by the nature of it you are not going to have witnesses who stood around and watched what took place. So, it is a difficult task that you are going to have and I do sympathize with you, and I have been in your shoes many times. So, I am going to proceed now to give you instructions for the duties that you should fulfil in this difficult task.

[8] The trial judge then cautioned the jury that they must not speculate on the evidence in the following terms:

Now, in any criminal trial neither the crown nor the accused is obliged to call every witness who may have knowledge of the facts in issue, nor must they produce all the objects or documents referred to in the evidence. Although you may wish the evidence is more complete in certain areas, you will have to reach your verdict on the evidence that was presented to you and you must not speculate about potential evidence that was not presented. Your duty is to consider only the evidence that has been introduced at trial and the law that I am giving to you.

[9] The trial judge also omitted from the Lifchus form of charge to tell the jury that a reasonable doubt can arise from the absence of evidence.

[10] The appellant submits that, considered cumulatively, these instructions withdrew from the jury the ability to consider whether they might have had a reasonable doubt based on the absence of evidence. In our opinion, the trial judge’s language does not extend that far. The judge’s comments that they must decide the case on the evidence they had heard were made in the context of telling the jury it could not speculate about evidence they had not heard and what other witnesses might have said if they had been called. The judge was not telling the jury that absence of evidence could not give rise to a reasonable doubt.

[11] In R. v. Brooks (1998), 1998 5686 (ON CA), 129 C.C.C. (3d) 227 (Ont. C.A.); rev’d on other grds (1999), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.), a similar complaint was raised. Writing for the majority (and consistent with the dissenting judgment), Laskin J.A. held:

… the trial judge told the jury not to speculate and, unlike the jury in Lifchus, this jury could not have misapprehended the applicable burden and standard of proof. The trial judge’s charge on reasonable doubt has been widely used in this province and has been found acceptable by this court even in the wake of Lifchus. See, for example, R. v. Arsenault; R. v. Marquardt; R. v. Ransley. To amount to reversible error, something more is needed than the trial judge’s failure to refer to “the lack of evidence”. I would not give effect to this ground of appeal. [Citations omitted.]

In our view, the same result should be applied in this case.

[12] The appeal as to conviction is dismissed.

[13] With respect to sentence, the appellant submits that the trial judge erred in principle when he stated that the unavailability of adequate supervision made a conditional sentence inappropriate. The Crown concedes that this was an error in principle. This court is therefore entitled to impose a fit sentence.

[14] The appellant submits that we should impose a conditional sentence of 18 months as opposed to the sentence of 18 months in jail that was imposed. The appellant was in his 30s when the offences were committed. They commenced when the complainant was a very young child; they were not isolated events and took place over a number of years. The victim impact statement indicates that the victim continues to suffer as a result of these assaults. Although the appellant is now 66 and in ill health, the pre-sentence report cannot be categorized as favourable. Having regard to the comments of this court in R. v. Cromian, 2002 4807 (ON CA), [2002] O.J. No. 354 (C.A.), we are of the view that a fit sentence is that imposed by the trial judge.

[15] Leave to appeal sentence is granted but the appeal is dismissed.

Signed: “M.A. Catzman J.A.”

“K.M. Weiler J.A.”

“K. Feldman J.A.”