DATE: 20030616
DOCKET: C38837

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. P.C. (Appellant)

BEFORE: DOHERTY, ARMSTRONG JJ.A. and BLAIR R.S.J. ad hoc

COUNSEL: Irwin Koziebrocki for the appellant Amy Alyea for the respondent

HEARD: June 12, 2003

RELEASED ORALLY: June 12, 2003

On appeal from the conviction entered by Justice B. Smith, sitting with a jury, on May 9, 2002 and the sentence imposed on September 13, 2002.

ENDORSEMENT

[1] The appellant was convicted by a jury of sexually assaulting a young foster girl in his care over about a 2 year period when the girl was eight or nine years old. According to the complainant, the appellant regularly came to her bedroom shortly after she went to bed and fondled her breasts and vagina. The molestation escalated to digital penetration of the vagina.

[2] The appellant testified and denied the assaults. His wife and brother-in-law gave evidence in support of his defense.

[3] This was a straightforward case. The Crown's case rested entirely on the complainant's evidence. There were difficulties with her credibility, including her failure to disclose the alleged assaults for a considerable period of time during which she was attending sexual abuse educational classes. These difficulties with the complainant's credibility were fully canvassed in the closing addresses of counsel and the charge to the jury. The appellant does not take issue with the charge.

[4] Counsel framed various grounds of appeal in his factum, however, they all come down to the submission that the verdict is unreasonable. The limited scope of appellate review when it is alleged that the verdict is unreasonable is well established. Appellate courts must be particularly careful in assessing credibility from the far off distance of the Court of Appeal. Bearing in mind the limited scope of our review, we see no basis upon which to interfere with the jury's verdict.

[5] The appellant also appeals the sentence imposed of 15 months. We see no error in principle in the sentence imposed. Given the nature of the offence for which the appellant was convicted, we cannot say that the trial judge erred in exercising his discretion in favor of incarceration. He did consider a conditional sentence, but determined that it was not appropriate in the circumstances.

[6] The appeal from conviction is dismissed. Leave to appeal the sentence is granted and the appeal is dismissed.

"Doherty J.A."
"Armstrong J.A."
"R.A. Blair R.S.J. (ad hoc)"