DATE: 20040408

DOCKET: C38475

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – T.J.D. (Appellant)

BEFORE: WEILER, CRONK and GILLESE JJ.A.

COUNSEL: T.J.D.

the appellant in person

Michael W. Lacy

duty counsel for the appellant

Riun Shandler

for the respondent

HEARD: March 26, 2004

RELEASED ORALLY: March 26, 2004

On appeal from the judgment of Justice James M. Donnelly of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated May 31, 2002, dismissing an appeal from the conviction entered by Justice Alphonse T. Lacavera of the Ontario Court of Justice dated April 6, 2000.

E N D O R S E M E N T

[1] The appellant was convicted of sexually assaulting his wife and was sentenced to fourteen months custody and probation for two years. As well, an order with a ten year duration was imposed under s. 110 of the Criminal Code. The appellant appeals his conviction, having served the custodial portion of his sentence.

[1] The appellant and his wife were married for less than a year when they separated. They had been separated for approximately a month and a half when the appellant went to the wife’s apartment and asked to be admitted in order to return a pair of jeans he said belonged to the wife. The wife let him in. The appellant had sex with his wife. The wife went to work and, some twelve hours later, went to the police station and alleged that she had been sexually assaulted. The appellant admitted having sex with his wife but said that the sex was consensual. He was convicted at trial and the summary conviction appeal judge (SCAJ) dismissed his appeal.

[2] Before us, the appellant advances two grounds of appeal. The first ground of appeal concerns the admissibility of evidence regarding the appellant’s prior discreditable conduct with his wife. The second ground of appeal relates to similar fact evidence from the appellant’s former common law wife.

[3] With respect to the first ground of appeal, the trial judge admitted the evidence on the basis of this court’s decision in R. v. D.S.F. (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.). In that case, evidence that the accused was an abusive and controlling person was admitted to explain why the complainant had not left the relationship and reported the allegations of sexual assault earlier, as well as to provide narrative context and evidence of motive. In the case before us, the appellant first went to work before going to the police. At trial, the defence did not take the position that the delay in reporting was irrelevant and, on the voir dire relating to the admissibility of the evidence concerning the appellant’s prior discreditable conduct, put to the complainant that there was no reason why she could not have called the police immediately after the alleged assault. After balancing the probative effect of the evidence against its prejudice, the trial judge admitted the evidence. The appellant submits that the trial judge erred in concluding that the evidence had any probative value. We disagree. In our opinion, in accordance with D.S.F, the evidence was admissible with respect to the narrative or context of events and to show animus or motive on the part of the appellant. It was also relevant to explain why the complainant first went to work before going to the police to report the assault by the appellant. Accordingly, the first ground of appeal fails.

[4] The second ground of appeal relates to similar act evidence from the appellant’s former common law spouse. The trial judge erred in admitting this evidence as going to credibility at large. In addition, he did not engage in any proper weighing of the dissimilarities of the acts as well as their similarities. The SCAJ, in the end, deferred to the trial judge’s decision to admit the evidence. In so doing he also erred. Neither of them had the benefit of the Supreme Court of Canada’s recent decision in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. We are therefore required to re-examine and re-weigh the evidence in accordance with the analytical framework of Handy and to decide whether the evidence should have been admitted.

[5] The similar act evidence was relevant to the issue of the consent component of the actus reus of the offence charged. The degree of similarity between the acts was sufficient. In both cases there was a threatened or actual separation followed by forced sexual acts after which the appellant apologized and admitted that he had “raped” the victim. The dissimilarities in the nature of the sexual conduct did not have a great bearing on the issue of consent in this case. There was no evidence of collusion. The probative value of the evidence was high, and we are of the view that it outweighs any prejudicial effect. The fact that four years separated the two incidents does not make them so remote as to remove their probative value.

[6] Accordingly, although the evidence was admitted at trial on the wrong basis, it was properly admissible. There was no substantial wrong or miscarriage of justice occasioned by the evidence being admitted and, therefore, the appeal is dismissed.

“Karen M. Weiler J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”