DATE: 20030905
DOCKET: C39356

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - MARCEL BERTHELOTTE (Appellant)

BEFORE:

DOHERTY, CHARRON and ARMSTRONG JJ.A.

COUNSEL:

Peter Connelly for the appellant

Christine Tier for the respondent

HEARD:

August 20, 2003

On appeal from the conviction entered by Justice Bernard T. Ryan of the Ontario Court of Justice on September 17, 2002.

ENDORSEMENT

[1] The appellant was convicted of sexually assaulting the 11-year old complainant after a trial by a judge sitting without a jury. The Crown's case rested almost entirely on the evidence of the complainant. The appellant did not testify.

[2] Counsel for the appellant contends that the reasons for judgment revealed a failure to properly assess the complainant's evidence, a failure to consider evidence that contradicted her evidence, and a misapprehension of some of the evidence.

[3] The trial judge began his consideration of the complainant's evidence by indicating that as it was unconfirmed he should "take into account the dangers of considering the uncorroborated evidence of a complainant aged 11". After referring again to the complainant's age and its effect on the reliability of her evidence, the trial judge commented positively on the complainant's demeanour in the witness stand.

[4] The trial judge turned next to the "surrounding circumstances" and reviewed some, but by no means all, of the evidence adduced from the witnesses other than the complainant. He concluded that the Crown had proved its case beyond a reasonable doubt.

[5] The appellant submits that the trial judge did not adequately consider various inconsistencies in the statements and testimony given by the complainant. The Crown's submissions satisfy us that none of the inconsistencies were so potentially significant as to demand specific consideration by the trial judge in his reasons. To the contrary, the statements and testimony considered as a whole revealed a consistent description of the essential features of the alleged assault.

[6] The appellant submits that the trial judge relied on speculation in concluding that the complainant's evidence should be preferred over that of her aunt where the evidence of the two witnesses was at variance. The trial judge concluded that the aunt's evidence was unreliable because she constantly changed her evidence in response to suggestions from counsel during cross-examination. The trial judge went on to speculate as to why the aunt's evidence was so subject to change. This speculation was not helpful, however, it did not affect the trial judge's conclusion that the variability of the aunt's evidence made it unreliable.

[7] Lastly, counsel submits that the trial judge failed to consider evidence from other witnesses, especially the complainant's mother, that was diametrically opposed to the complainant's description of events immediately following the alleged assault. While there were inconsistencies between the complainant's evidence and the evidence of her mother as to the timing of the relevant events, we cannot say that the trial judge's failure to expressly refer to these differences in the evidence indicates that he failed to appreciate that they existed or to consider them in rendering his verdict. The inconsistencies were not so numerous or substantial as to equate a failure to refer to them with a failure to consider them.

[8] We would dismiss the appeal.

"D. Doherty J.A."
"Louise Charron J.A."
"R.P. Armstrong J.A."