DATE: 20020909 DOCKET: C37157

COURT OF APPEAL FOR ONTARIO

LABROSSE, WEILER and CHARRON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Susan Reid,

for the respondent

Respondent

• and -

W.K.

Constance Baran-Gerez,

for the appellant

Appellant

Heard: September 4, 2002

Released orally: September 4, 2002

On appeal from the conviction imposed by Justice J. Douglas Cunningham of the Superior Court of Justice dated January 4, 2001 and from the sentence imposed by Justice Cunningham dated January 26, 2001.

BY THE COURT:

[1] The appellant appeals his conviction on one count of sexual interference respecting T.E. and seeks leave to appeal his sentence of two years less a day.

The conviction appeal

[2] The appellant emphasized three grounds of appeal in oral argument respecting the conviction appeal, all of which relate to similar act evidence. They are: 1) the admissibility of the similar act evidence of J.H.; 2) M.K.’s recantation; and 3) the issue of collusion.

1) The admissibility of the similar act evidence

[3] The appellant stood in loco parentis to S.E.’s three daughters, T.E., L.K. and M.K. On the appellant’s trial for sexual interference with T.E., the Crown made an application to tender the similar act evidence of L.K. and M.K. and T.E.’s friend, J.H. In earlier proceedings, the appellant had been convicted of two counts of sexual assault on J.H. by summary judgment. He appealed his conviction to the summary conviction appeal judge and it was quashed on the basis that the appellant was unrepresented and had failed to bring a challenge under s. 10(b) of the Charter respecting the admissibility of a statement he made to the police. The summary conviction appeal judge declined to enter a stay and ordered a new trial. No new trial was ever held respecting J.H. In the case before us, the trial judge ruled that the decision setting aside the appellant’s conviction respecting J.H. was not related to the reliability of J.H.’s evidence and J.H.’s evidence was admissible as similar act evidence.

[4] The appellant submits that the summary conviction appeal decision quashing the appellant's conviction concerning J.H. was tantamount to an acquittal and that, consequently, the trial judge erred in admitting her evidence. This argument was also made before the trial judge and rejected by him. We agree with the trial judge that the decision setting aside the conviction was not tantamount to an acquittal.

[5] The reasons for the successful appeal of the appellant’s conviction respecting J.H. were set out in an agreed statement of facts before the trial judge. The appellant now seeks to introduce the transcript of the prior proceedings as fresh evidence. He submits that, had the trial judge considered the transcript of the summary conviction appeal decision, he would have been aware that there was some doubt as to the admissibility of part of the complainant’s evidence. The transcript does not meet the test for the admissibility of fresh evidence. The distinction between the transcript and the agreed statement of facts is not a meaningful one and would not have affected the result. The trial judge did not rely on the fact of a prior conviction to increase the reliability of J.H.’s evidence. It is the admissibility, cogency and reliability of J.H.’s evidence in this trial with which the trial judge was concerned.

2) M.K.’s recantation

[6] The second ground of appeal relates to the trial judge’s alleged “failure” to resolve the issue of whether M.K. had recanted an allegation of sexual interference she had made against the appellant in 1988.

[7] The case note of the police officer involved in that case was read to the court by another officer and was as follows: “M. conveys on this night that she had made up the story about Walter ever touching her, and the only reason she did that was for the attention.” M.K. was cross-examined about the note and did not recall whether she recanted her allegation of abuse. M.K.’s mother testified and was not cross-examined on that point.

[8] The appellant submits that, prior to relying on M.K.’s evidence, it was incumbent on the trial judge to resolve the issue of whether she recanted and, if so, the effect of her recantation on the reliability of her evidence. Instead, the trial judge stated that he could not determine whether M.K. had recanted her evidence. This was not unreasonable given the paucity of evidence about the recantation. The trial judge was not required to determine whether M.K. recanted her allegation in 1988. He was required, rather, to assess her credibility in the trial before him and to determine whether he believed her. It is apparent from his reasons that he was not unmindful of the alleged recantation. He nonetheless believed M.K. and it was open to him to do so.

3) The issue of collusion

[9] The third ground of appeal is that the trial judge failed to apply the proper test for admissibility of similar act evidence having regard to the evidence of collusion.

[10] In his ruling the trial judge concluded that the complainant, her sisters, and J.H. had no motive to fabricate. The appellant submits that the trial judge ought to have considered, instead, whether there was some evidence of common source of information. Had the trial judge done this, the appellant submits that the trial judge ought not to have admitted the evidence. The trial judge’s comments respecting motive in his ruling were a response to the submission made by appellant’s counsel at the time of trial. The evidence respecting collusion went no further than mere opportunity. Mere opportunity arising out of contact between the complainant and the similar act evidence witnesses does not amount to collusion. On this record, it was open to the trial judge to admit the evidence and to ultimately conclude, as he did, that there was no collusion.

[11] The trial judge made no error in admitting the similar act evidence. We would dismiss the appeal concerning the grounds related to similar act evidence.

[12] Quite apart from the similar act evidence, the trial judge made it clear that he was prepared to convict based on the evidence of the complainant alone. The complainant testified to numerous incidents of the appellant touching her. This evidence stood uncontradicted as the appellant did not testify. The verdict was amply supported by the evidence. In our opinion, there is no merit in the submission that the verdict was unreasonable or the ancillary arguments raised in the appellant’s factum.

[13] Accordingly, we would dismiss the appeal as to conviction.

The sentence appeal

[14] We did not call upon the Crown to respond to the submissions on sentence. The appellant was in a position of trust to T.E.; the abuse continued over a period of six years with numerous incidents; she suffered serious psychological harm that is ongoing. The appellant is not a first offender and has a criminal record for property offences and crimes of dishonesty. The trial judge considered and rejected a request for a conditional sentence. He committed no error in principle and, in our opinion, the sentence was fit.

[15] While leave to appeal sentence is granted, the appeal as to sentence is also dismissed. Released: SEP 09 2002 JL

Signed: “J.-M. Labrosse J.A.”

“Karen M. Weiler J.A.”

“Louise Charron J.A.”