DATE: 20020808 DOCKET: C38058

COURT OF APPEAL FOR ONTARIO

RE:

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

BEFORE:

CATZMAN, DOHERTY and CRONK JJ.A.

COUNSEL:

John Hale

for the appellant

Susan Magotiaux

for the respondent

HEARD:

August 6, 2002

RELEASED ORALLY:

August 6, 2002

On appeal from the conviction entered by Justice J.A. Fontana on September 21, 2001.

ENDORSEMENT

[1] The appellant was convicted of sexually assaulting his eight year old niece. The Crown’s case relied entirely on her evidence. She said that she was sexually assaulted by the appellant one evening when he was babysitting her. The appellant testified and denied any sexual activity with the complainant, although he acknowledged that he did babysit her on the night in question. Defence witnesses were called to support various aspects of the defence and to suggest that the complainant’s evidence was inaccurate in several respects.

[2] There are two grounds of appeal.

I

The adequacy of the reasons

[3] This was a straightforward case which did not involve any difficult legal issues. The result turned largely on the trial judge’s assessment of the credibility of the complainant and the appellant. Applying the functional analysis described in R. v. Sheppard (2002) 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.), we are satisfied that the reasons clearly reveal the basis for the conviction and provide an adequate basis for appellate review. The trial judge explained in some detail why he believed the complainant. He accurately summarized the position of the defence. He then referred to some of the specific inconsistencies relied on by the defence and explained why they did not adversely affect her credibility. Finally, he specifically considered whether the Crown had met the burden of proof given the defence evidence. The trial judge’s failure to deal with all of the alleged inconsistencies and his failure to articulate reasons for rejecting the appellant’s denial, in addition to those advanced for accepting the complainant’s evidence, are not fatal flaws in the reasons.

II

The alleged splitting of the Crown’s case

[4] The appellant testified and was cross-examined at length by the Crown. After the appellant had completed his testimony and other defence witnesses had testified, Crown counsel advised the trial judge that she had mistakenly failed to cross-examine the appellant on certain inconsistencies between his testimony and the statement he had given to the police shortly after his arrest. In the course of argument, it was accepted by counsel for the appellant that full disclosure of that statement had been made to the defence, that the appellant had made the statement and that it was voluntary.

[5] The trial judge ultimately ruled that the Crown could put the statement into evidence after the case for the defence. Defence counsel then asked the appellant about the alleged inconsistencies and Crown counsel cross-examined. The Crown relied on three alleged inconsistencies between the appellant’s testimony and his statement.

[6] The appellant refers to the Crown as having “split its case”. We do not think that is what happened. As we read the reasons, the trial judge effectively allowed the Crown to recall the appellant for further cross-examination on his prior statement. It is conceded that the judge has the discretion to allow a witness to be recalled for further cross-examination. That discretion must be exercised very cautiously in criminal proceedings, especially where the witness is the accused. We are satisfied, however, that whatever procedural irregularity may have resulted, the trial judge’s ruling caused no prejudice to the appellant. In that regard, we note that this was a trial by a judge alone and not a trial by judge and jury.

[7] The appeal from conviction is dismissed.

“M.A. Catzman J.A.”

“Doherty J.A.”

“E.A. Cronk J.A.”