W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.

DATE: 20030430

DOCKET: C38172

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent)

• and - L. (T.B.) (Appellant)

BEFORE: WEILER, LASKIN and MOLDAVER JJ.A.

COUNSEL: Robert Sheppard For the appellant

Karey Katzsch For the respondent

HEARD: APRIL 11, 2003

RELEASED ORALLY: APRIL 11, 2003

On appeal from conviction by Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury, on December 19, 2001 and from sentence imposed on February 25, 2002.

E N D O R S E M E N T

[1] On December 19, 2001, after trial by judge and jury, the appellant was convicted of two counts of indecent assault in relation to two of his step-daughters, R.M. and M.L and one count of illicit sexual intercourse with M.L.

Background

[2] The offences are historical in nature. The indecent assault on R.M. occurred between September 1967 and February 1973 when R.M. was an adolescent. The event itself involved the appellant placing his hands under R.M.’s shirt and holding her breasts for a period of about 5 minutes. The indecent assault on M.L. occurred between September 1967 and February 1973. M.L. recalled that she was about 11 years old at the time. In this instance, the appellant pulled M.L.’s pants and underwear down and touched her vagina with his fingers for a few minutes.

[3] As for the charge of illicit sexual intercourse, the appellant began having full intercourse with M.L. around 1976, when she was about 15 years old. The sexual misconduct continued on a regular and persistent basis for the better part of ten years, until 1986.

[4] With respect to sentence, the trial judge imposed a prison term of 15 months for the offence of illicit sexual intercourse and six months each on the two counts of indecent assault, concurrent to each other and concurrent to the 15-month sentence on the count of illicit sexual intercourse. Hence, the appellant received a total sentence of 15 months imprisonment. In addition, the trial judge placed him on probation for a period of two years. At the time the offences were committed, the maximum term of imprisonment for illicit intercourse with a step-daughter was two years. The offence of indecent assault carried a maximum punishment of five years imprisonment. The appellant appeals against conviction and sentence. The Crown cross-appeals against the sentence.

Conviction Appeal

[5] The appellant raises several grounds of appeal against conviction, all of which relate to certain evidence which the trial judge left to the jury as similar fact evidence.

[6] Before addressing the issues, we note that the similar fact evidence in question is not evidence from a third party about events not covered by the indictment. Rather, it relates to the evidence given by M.L. and R.M. on the various counts relating to each and the use, if any, the jury could make of one’s evidence in deciding whether the Crown had made out its case in relation to the other.

[7] In view of this, a separate “admissibility” hearing was not required. The sole issue for the trial judge was whether there was a proper basis in fact and law for permitting the jury to consider the evidence of one as similar fact evidence in deciding whether the Crown had proved its case in relation to the other. Against this backdrop, the appellant raises three complaints.

[8] First, he submits that he was prejudiced in the conduct of his defence because the use of the complainants’ evidence as similar fact evidence was not raised before or during the evidentiary phase of the trial but only at the precharge conference. According to the appellant, had he been alerted to the similar fact issue earlier, he might have altered his defence strategy. In particular, he submits that he might have moved for severance and if unsuccessful, he might have focused more intensely on the dissimilarities in the complainants’ evidence or alternatively, on the likelihood of collusion.

[9] We would not give effect to this argument for two reasons.

[10] First, we reject the underlying premise that the Crown was obliged to give the defence advance notice of its intention to use the complainants’ evidence as similar fact evidence. As a matter of law, the defence knew or should have known that this possibility existed from the outset. Absent an express undertaking from the Crown not to use the evidence in this fashion (of which there was none here), the defence cannot claim that it was misled. Accordingly, we reject the submission that lack of notice occasioned prejudice to the defence and resulted in an unfair trial.

[11] Second, even if ‘timely’ notice had been given, we doubt that it would have altered the defence strategy in any meaningful way. A severance motion would almost certainly have failed. The dissimilarities in the complainants’ evidence were obvious and ‘more intense’ cross-examination would have accomplished little. The essence of the defence was that the complainants and their immediate family members had conspired together to “get” the appellant and their evidence was the product of collusion. This theme was pervasive throughout the trial and it is fanciful to think that it would have received more attention had the defence been alerted to the similar fact issue. Accordingly, we would not give effect to the first branch of the appellant’s argument.

[12] The appellant next submits that it was wrong for the trial judge to leave the evidence of the complainants to the jury as similar fact evidence because whatever limited probative value it might have was far outweighed by its prejudicial effect.

[13] We disagree. The trial judge determined, correctly in our view, that the evidence of each complainant was capable of confirming the testimony of the other and that the potential for prejudice could be circumvented by a strong limiting instruction. The trial judge did precisely that in his charge. He instructed the jury in clear terms on the limited use that could be made of the evidence and the manner in which it could not be used. To be sure, the jury was not overwhelmed by the similar fact evidence. They acquitted the appellant of a second charge of indecent assault against R.M.

[14] In short, we see no error in the trial judge’s assessment of the evidence as similar fact evidence or in his instruction to the jury.

[15] Finally, the appellant submits that the trial judge erred in failing to instruct the jury on the matter of collusion and its impact on the probity of the similar fact evidence.

[16] We agree that it would have been preferable had the trial judge dealt specifically with the issue of collusion in his charge. In all of the circumstances however, we are not persuaded that his failure to do so constituted reversible error.

[17] The evidence of collusion in this case was weak. To the extent that it went beyond mere speculation, it did so just barely. Unquestionably, the complainants shared with each other the fact that they had been abused by the appellant. They denied going further and sharing the details. The dissimilarities in their evidence as to the nature and extent of the appellant’s abusive conduct towards them bears this out. In any event, as indicated, the theme of the defence throughout was that the complainants had put their heads together and concocted false allegations against the appellant to pay him back for the mistreatment they had received at his hands during their formative years. This theme pervaded the trial. It was pressed by the defence in cross examination, it was addressed by the defence and the Crown in their closing remarks and it was repeated by the trial judge in his charge, both in his recitation of the evidence and his review of the position of the parties.

[18] In these circumstances, it is fanciful to think that the jury would have been unaware of the significance of collusion in assessing the worth of the similar fact evidence and in deciding whether the case for the Crown had been proved. On the contrary, despite the lack of a specific instruction, we are satisfied that the jury would have been alive to the issue of collusion and that they would have acquitted the appellant on all counts had they believed or entertained a reasonable doubt that the evidence of the complainants was the product of collusion.

[19] For these reasons, we would dismiss the appeal from conviction.

Sentence Appeal

[20] The appellant maintains that the trial judge erred in failing to impose a conditional sentence. In the cross-appeal, the Crown submits that the trial judge erred in failing to impose consecutive sentences for the offences of indecent assault.

[21] The trial judge gave cogent reasons for holding that a conditional sentence was not appropriate in the circumstances. We see no basis for interfering with his conclusion. Accordingly, we would grant leave to appeal but dismiss the appellant’s appeal from sentence.

[22] With respect to the cross-appeal, we agree with the Crown that the trial judge erred in failing to impose a consecutive sentence on the indecent assault charge involving R.M. In all of the circumstances, we think a six-month consecutive sentence was called for.

[23] Accordingly, we would grant leave to the Crown on its cross-appeal and vary the sentence on count one to six months consecutive. In all other respects, the sentence imposed at trial shall remain the same.

Signed: “Karen Weiler J.A.”

“John Laskin J.A.”

“M.J. Moldaver J.A.”