DATE: 20040901

DOCKET: C40032

COURT OF APPEAL FOR ONTARIO

DOHERTY, LASKIN and JURIANSZ JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Anthony De Marco

for the appellant

Respondent

• and -

JACK WUBBOLT*

Roger A. Pinnock

for the respondent

Appellant

Heard: August 27, 2004

On appeal from the convictions returned by a jury presided over by Justice Glass of the Superior Court of Justice on January 10, 2002; and on appeal from convictions returned by Justice Glass on January 10, 2002; and on appeal from sentences imposed by Justice Glass on August 1, 2002.

DOHERTY J.A.:

I

[1] The appellant was convicted of a number of sexual offences involving:

• his younger sister, Clara;

• his younger brother, John; and

• Margaret, a childhood friend of Clara’s.

[2] He received sentences totalling five years imprisonment.

[3] The appellant appeals conviction and sentence.

[4] The offences against his sister Clara occurred over some 10 years and involved a wide variety of escalating sexual misconduct. Most of the misconduct occurred before the appellant was 19. He did, however, engage in a single act of sexual intercourse with Clara in 1986 when he was 22 and Clara was 14.

[5] The offences against John also occurred over a number of years and involved a wide variety of sexual misconduct including fellatio.

[6] The offences involving Margaret arose out a single incident in 1981 when she was 11 years old. On the jury’s finding, the appellant attempted to engage in sexual intercourse with Margaret on that occasion.

II

[7] In 1986, the Brockville police investigated allegations of incest involving the appellant and his sister Clara. The appellant was arrested and made a statement acknowledging the incest. The appellant agreed to seek counselling and saw a psychiatrist on one occasion. He was not asked to return for more visits. The police decided not to proceed with criminal charges in 1986.

[8] The incest allegations were re-examined some 15 years later in 2000 as part of a broader investigation involving the appellant’s own children. Although that investigation did not lead to charges, the interview with Clara did bring the allegations of John and Margaret to the attention of the police. The police decided to proceed with charges relating to Clara, John and Margaret.

[9] The appellant moved at the outset of the trial to stay the charges involving Clara on the basis that proceeding with the charges some 15 years after a decision had been made not to proceed with those charges amounted to an abuse of process and infringed the appellant’s rights under s. 7 of the Charter. The trial judge dismissed the motion and the appellant pleaded guilty to the charges involving his sister. The appellant pled not guilty to the other charges.

III

[10] The appellant renews his argument on appeal that proceeding with the charges involving Clara amounted to an abuse of process and an infringement of s. 7 of the Charter. The appellant does not suggest that his ability to obtain a fair trial on these charges was affected by the prior decision not to proceed with charges and the lapse of some 15 years. He has always candidly acknowledged his culpability on these charges. He contends, however, that proceeding with criminal charges some 15 years after a decision not to proceed with such charges is so clearly an affront to community notions of fair play and decency as to require a stay of the proceedings.

[11] The trial judge rejected this argument and I have not been convinced he made any error in doing so. In dismissing the motion, the trial judge observed that:

• the second investigation had revealed two additional victims; and

• the appellant had never been formally charged in 1986 and had been investigated and released in the span of one day.

[12] This is not a case where it is alleged that the police reneged on an agreement they had made with the appellant, or that the appellant had taken certain steps in reliance on the decision of the police not to prosecute the offences. The appellant never made inquiries as to whether the police planned to proceed with charges and the police never conveyed their decision to the appellant. This was a case where the police initially decided not to proceed with charges and then reconsidered that decision some 15 years later.

[13] As the trial judge accurately observed, societal interests as well as the interests of the accused must be considered on an application to stay proceedings as an abuse of process. Only in the clearest of cases will a stay be justified. Society has a genuine interest in the prosecution of serious offences like those involving the appellant and his sister. A decision by the police to reconsider what may have been an unwise earlier decision, is not in and of itself an affront to the community’s sense of fair play. Like the trial judge, I reject this ground of appeal.

[14] The appellant also challenged the admissibility of the evidence concerning his conduct with his sister Clara on the charges involving John and Margaret. The trial judge concluded that the evidence was admissible for various reasons, including to assist the jury in assessing the credibility of John and Margaret. Some of the conduct involving Clara included one or both of the other complainants and much of the conduct involving Clara was similar to the conduct alleged in the other counts. The trial judge put it accurately when he said:

The three complainants have evidence to give with respect to each other which in fact amounts to part of the actus reus. To edit their evidence from the direct evidence and the similar acts would create an artificial narrative and in my opinion would create confusion for the trier of fact.

[15] I agree with the trial judge’s assessment. In the course of oral argument, counsel for the appellant conceded that much of Clara’s evidence was admissible as part of the narrative. He submitted, however, that the jury should not have heard evidence about the sexual intercourse in 1986, some years after the sexual activity involving John and Margaret.

[16] It was open to the trial judge to conclude that all of Clara’s evidence could assist the jury in assessing the credibility of the evidence given by John and Margaret. Assuming, as counsel appeared to concede in argument, that much of Clara’s evidence concerning the appellant’s sexual misconduct with her was admissible, I see little additional potential prejudice flowing from the admission of the evidence of a single act of sexual intercourse in 1986, which the appellant admitted took place.

[17] There is no merit in the submission that the trial judge did not adequately instruct the jury on the use it could make of the evidence of Clara. He thoroughly reviewed that evidence, its potential evidentiary value, and the features of the evidence which potentially enhanced and detracted from its probative value.

[18] The appellant’s third ground of appeal arises out of his application under s. 276 of the Criminal Code. The appellant sought to adduce evidence regarding sexual activity between his brother John and a man named Dwight Prince. The activity involving Mr. Prince had allegedly occurred when John was about eight years old and was living in the family home with the appellant. On John’s evidence, he was being sexually assaulted during this period by his brother. The trial judge admitted this evidence.

[19] The appellant also sought to lead evidence that when John was 22 or 23 years old, he routinely had consensual oral sex with three men in exchange for food. These alleged acts occurred many years after the alleged assaults by the appellant.

[20] The appellant argues that the evidence of John’s consensual sexual activity with three men in 1990 was relevant in that he may have been motivated to make a false accusation against the appellant of childhood abuse as a means of explaining or shifting the blame to others for his conduct as an adult.

[21] I agree with the Crown’s submission that there was no evidence to support this line of reasoning. There was no evidence that John blamed his brother for anything that had happened in his life when he made the allegations against his brother, or that John felt any need to fabricate a story to justify or explain his sexual conduct with other men. The proposed evidence had no probative value much less the “significant probative value” required by s. 276(2).

[22] The appellant also contends that the trial judge misstated the evidence of the complainant Margaret in the course of his instructions to the jury. Margaret was 11 years old when the alleged incident occurred. She did not testify that the appellant attempted to put his penis in her vagina. Margaret did, however, give evidence concerning the appellant’s attack on her and the pain she felt in her vaginal area. That evidence offered strong support for the inference that the appellant had placed, or at least attempted to place, his penis in Margaret’s vagina.

[23] During his instructions, the trial judge, on more than one occasion, suggested that Margaret had testified that the appellant had attempted to put his penis in her vagina. In other parts of the instruction, the trial judge clearly and accurately summarized Margaret’s evidence.

[24] After counsel objected to the trial judge’s characterization of Margaret’s evidence, the trial judge recalled the jury, referred them specifically to one of the occasions when he had indicated that “the defendant attempted to have sexual intercourse with Margaret”, and then said:

I would draw to your attention that those are not the words of Margaret … I would draw your attention back to what her evidence was. You use your memory of what her evidence was as to what actually took place as far as contact physical contact between the defendant and herself. That is my wording that I have put together and we wish to make it clear that wasn’t Margaret’s actual words.

[25] The recharge made it clear that the trial judge had overstated the evidence of Margaret in his initial instructions. The recharge also reminded the jury that their recollection of the evidence governed. This was a very short trial and the jury would have no difficulty recalling the evidence. It may have been better had the trial judge accurately summarized Margaret’s evidence in his recharge. That summary would not have assisted the appellant. Her evidence offered strong support for the contention that the appellant not only attempted to, but did penetrate her vagina with his penis.

IV

[26] The appellant sought to lead “fresh” evidence on appeal in the form of affidavits from his mother and his stepfather. In essence, the affidavits claimed that on three occasions after the trial, the appellant’s mother, who was also the mother of the complainant John, confronted John and accused him of falsely testifying that the appellant had sexually assaulted him. John did not respond directly to the accusations, but made statements that the appellant contends could be taken as an admission by John that he had lied in his testimony. The appellant submits that the evidence should be admitted on appeal as it undermines John’s credibility. He further contends that John’s credibility was important on the charges involving John and Margaret and that the “fresh” evidence should lead to a new trial on the counts involving those two complainants.

[27] It is not suggested that John directly admitted that he lied in his testimony. He also did not directly refute the allegations by his mother who had maintained throughout the proceedings that her son, the appellant, was innocent and that her son John was lying.

[28] Assuming that the statements made by John could be interpreted as an admission that he had falsely accused the plaintiff of sexual misconduct, those admissions would clearly go to John’s credibility. However, none of the statements have been put to John and he has not had an opportunity to respond to them. He is apparently not available. It is doubtful that the proffered statements are admissible to challenge John’s credibility when he has not been confronted with those alleged statements. In any event, absent confrontation, the impeachment value of the statements cannot be assessed. The appellant has not convinced us that the proffered evidence could have affected the result at trial. The evidence is inadmissible on appeal.

V

[29] The appellant received sentences totalling five years. He was 39 years old at the time of sentencing. The last sexual assault for which he was convicted occurred in 1986 when he was 22 years of age. The other assaults occurred over a prolonged period ending when the appellant was 18 years of age. The offences occurred while the appellant who was several years older than the complainants was babysitting the complainants.

[30] The pre-sentence report indicates that the appellant has had a very troubled background. The report has both positive and negative features. The appellant has an unrelated minor criminal record.

[31] The gravity of all of the offences, and the repeated, persistent and increasingly serious nature of the offences against the appellant’s brother and sister combined to require that the appellant receive a substantial prison sentence.

[32] I am satisfied, however, that the trial judge made two errors in principle. At trial, counsel for the appellant argued that the appellant’s unqualified admission of his misconduct towards his sister when confronted by the police in 1986 was a substantial mitigating factor insofar as the offences against his sister were concerned. The trial judge rejected this argument stating:

… I do not find that this is a mitigating circumstance. He did not reveal all of his experience of sexual impropriety that included his brother John … and Margaret.

[33] In 1986, when the appellant acknowledged his sexual misconduct with his sister, there were no allegations involving John and Margaret. I do not think that his failure to volunteer that he had sexually assaulted those complainants should detract from the mitigating effect of his admissions as they related to his sister. Had the police chosen to proceed in 1986, the appellant would have been entitled to the mitigating value of his immediate and complete admission of culpability. I think he was entitled to the same mitigation when the police eventually proceeded with the charges involving his sister, and the appellant, as he had in 1986, admitted his culpability.

[34] The trial judge also rejected the submission that as most of the offences had been committed while the appellant was a young offender, his sentencing should reflect the principles governing young offenders. I agree with the trial judge’s conclusion that the appellant could not be treated as a young offender. I am, however, satisfied that his young age when most of the offences were committed should have been given some weight in determining a fit sentence. It was not appropriate to disregard his age when most of the offences were committed because he continued to commit offences into adulthood.

[35] As I am satisfied that the trial judge erred in principle, this court is required to determine the appropriate sentence. In doing so, I acknowledge that while all of the offences are related, the offences against each complainant should be given separate recognition in the sentencing process. In imposing appropriate sentences in respect of each of the complainants, I must, however, consider the totality of the sentence imposed: Criminal Code s. 718.2(c).

[36] I would vary the sentences imposed at trial as follows:

• in relation to the offences involving the appellant’s sister (counts 1, 3 and 4 in indictment 9535A/01), I would impose sentences of two years concurrent on each count;

• in relation to the offences involving the appellant’s brother John (counts 1 and 5 in indictment 9535B/01), I would impose sentences of 10 months concurrent to each other, but consecutive to the sentences imposed for the offences involving the appellant’s sister; and

• in relation to the offences involving Margaret, (counts 3, 4 and 6 in indictment 9535B/01), all of which relate to a single incident, I would impose sentences of 8 months concurrent to each other, but consecutive to both the sentences imposed in relation to the offences against the appellant’s sister and the offences against the appellant’s brother.

[37] The appellant’s total sentence will be three and a half years.

[38] The trial judge also imposed a lifetime ban under s. 161 of the Criminal Code prohibiting the appellant from frequenting public locations where children might reasonably be expected to attend. There was no evidence from which it could reasonably be inferred that the appellant posed any risk to young children in public venues within the community. None of the offences he committed involved that kind of activity and the last offence he had committed was some 18 years prior to his sentencing. I would delete the s. 161 order.

VI

[39] The conviction appeal is dismissed. The sentence appeal is allowed and the sentences are varied as indicated above.

RELEASED: “DD” “SEP 01 2004”

“Doherty J.A.”

“I agree “Laskin J.A.” per Doherty J.A.”

“I agree R.G. Juriansz J.A.”

• The trial judge made a non-publication order at trial, but with the concurrence of the victims rescinded that order on sentencing. We were not asked to make a non-publication order. Consequently, there is no non-publication order in effect.