DATE: 20031003 DOCKET: C38988

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. CHRISTOPHER VAN BEEK (Appellant)

BEFORE:

O'CONNOR A.C.J.O., CATZMAN and MOLDAVER JJ.A.

COUNSEL:

Sharon Lavine and Karen Bellinger for the appellant

Erika Chozik for the respondent

HEARD:

September 29, 2003

RELEASED ORALLY:

September 29, 2003

On appeal from the conviction entered by Justice R.G.S. Del Frate on July 17, 2002.

ENDORSEMENT

[1] Despite Ms. Lavine's able arguments, we are not persuaded that the trial judge misapprehended the evidence. It is apparent that the trial judge rejected the appellant's evidence that the "kiss and hug" incident occurred on the evening before he was confronted by the mother. This conclusion was supported by the evidence of the mother and the complainant. The complainant testified that the appellant had improperly approached her in the bedroom on that evening. The mother's evidence was that she found the bedroom in disarray on the evening before she confronted the appellant. The "kiss and hug" incident described by the appellant did not take place in the bedroom.

[2] We, therefore, do not agree that the trial judge misapprehended the evidence when he said that Mr. Van Beek does not deny that the mother confronted him, but his explanation of the timing is not acceptable.

[3] As to the issue of the complainant's motive to lie, the trial judge found that the appellant's contention that the complainant had reason to fabricate this occurrence was not plausible. The trial judge then addressed only one of the defence arguments as to her motive to lie. It was not necessary for the trial judge to specifically refer to every argument raised by the defence. In any event, we consider the argument that the complainant would have felt constrained, because of her initial lie, to continue the lie some 18 months later at trial in order to protect herself from her mother as most improbable.

[4] We are not prepared to interfere with the DNA order. Even if the trial judge proceeded under s. 487.051 of the Criminal Code, we are satisfied that an order should issue under s. 487.052. Although the appellant had no criminal record, there were aggravating circumstances relating to the offences. The complainant was 13 years of age and the appellant was in a position of trust. We see no reason to depart from the usual approach that an order should issue. Accordingly, the appeal is dismissed.

"Dennis O'Connor A.C.J.O." "M.A. Catzman J.A." "M.J. Moldaver J.A."