DATE: 20041119

DOCKET: C40188

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – C. P. (Appellant)

BEFORE:

WEILER, SIMMONS and JURIANSZ JJ.A.

COUNSEL:

Gregory Lafontaine

for the appellant

Shawn Porter

for the respondent

HEARD & RELEASED ORALLY:

November 4, 2004

On appeal from the conviction entered by Justice George T. Valin of the Superior Court of Justice, sitting without a jury, dated November 18, 2002.

E N D O R S E M E N T

[1] On November 18, 2002 Valin J. of the Superior Court of Justice found the appellant guilty of sexual assault (count 1) and sexual touching (count 2 stayed pursuant to Kienapple) in relation to T.L. He further found the appellant guilty of four counts of indecent assault on four other complainants: S.C. (count 9), C.L. (count 10), C.S. (count 12) and S.L. (count 14). The appellant was acquitted on the other counts in the fifteen‑count indictment.

[2] The appellant testified at trial and denied that the incidents ever occurred. He appeals against his conviction and raises several grounds of appeal relating to the reasons of the trial judge. In addition, the appellant asserts that evidence that the trial judge admitted as similar fact evidence in relation to counts 9, 10, 12 and 14 ought not to have been admitted. Save in respect of count 14 we would dismiss the appeal.

The reasons of the trial judge

[3] In relation to the trial judge’s reasons the appellant submits that: 1) the trial judge failed to provide sufficient reasons indicating why he rejected the appellant’s evidence concerning the alleged offences; 2) the trial judge reversed the burden of proof; 3) the trial judge’s reasons did not deal with the appellant’s evidence and dealt only with the complainants’ evidence on those counts of which he was convicted; and 4) the trial judge used a form of self-corroboration in relation to the evidence of T.L.’s mother.

[4] We would not give effect to any of these grounds of appeal. The trial judge charged himself on the burden of proof; the principles articulated in R. v. (W.D.); the presumption of innocence; the difficulties faced by the appellant as an accused facing historical allegations of sexual assault; the dangers of propensity based reasoning; and the necessity to scrutinize the evidence more closely when the Crown’s case is wholly dependant on the testimony of the complainant.

[5] In addition to charging himself on general propositions of law, the trial judge dealt with each count in the indictment. Counts 1 to 6 involved the same complainant T.L. and related to three incidents. The first two involved an incident in a motel in Barrie, the third and fourth an incident that allegedly occurred at Christmas and the fifth and sixth an incident that allegedly occurred on a truck ride with the appellant to Little Current. The trial judge accepted T.L.’s evidence in relation to counts one and two relating to the Barrie incident and convicted the appellant. He acquitted the appellant in relation to the Christmas incident and the Little Current truck incident.

[6] Prior to accepting T.L.’s evidence and finding the appellant guilty in relation to the Barrie incident the trial judge outlined the other two alleged incidents and T.L.’s evidence. The trial judge then discussed the appellant’s evidence. He reviewed the appellant’s testimony that the contact with his granddaughter T.L. at the motel in Barrie was due to accidentally tripping on her bed and falling on her as well as the medical evidence that he had difficulties in maintaining balance and coordination.

[7] After reviewing the appellant’s evidence, the trial judge considered the evidence from C.L.’s sister and mother and found that it confirmed T.L.’s evidence. We disagree that the trial judge used the mother’s explanation for not complaining earlier about the appellant as confirmatory of her own testimony. The trial judge simply found that the mother was a reluctant witness, accepted her testimony that she too had been sexually assaulted as credible, and found her overall testimony compelling.

[8] After dealing with the Barrie incident, the trial judge noted that no confirmatory evidence existed in relation to the other alleged incidents. In relation to the Christmas incident, it did not make sense to the trial judge that the appellant would do the act alleged when so many other people were present. In relation to the Little Current truck incident, the trial judge drew an adverse inference against the Crown because it did not call the friend that T.L. said she visited right after the appellant sexually assaulted her. He acquitted the appellant on these counts.

[9] We do not agree that the trial judge convicted the appellant where there was confirmatory evidence without considering whether his evidence raised a reasonable doubt. Nor do we agree that the trial judge reversed the burden of proof. If anything, the trial judge’s approach of looking for confirmatory evidence inured to the benefit of the appellant.

[10] The fact that the trial judge accepted the evidence of the complainant T.L. on some counts and not on others also does not mean that he failed to assess the credibility of the complainant generally. Rather, he considered whether the evidence was internally consistent on the various counts.

[11] In his reasons, the trial judge did not specifically address the allegation that T.L. had a motive to fabricate her evidence, namely that she was aggrieved the appellant had not given her money as he was accustomed to give his other grandchildren. This alleged motive to fabricate would not apply to the Barrie incident as the timing alleged in relation to that incident occurred before the alleged motive to fabricate arose and, also, the trial judge accepted the evidence that the complainant had already told her sister and mother about the Barrie incident.

[12] In relation to count 10, respecting C.L., the mother of T.L., the trial judge found her to be the most credible witness and completely reliable. He found no inconsistencies in her evidence and also found that she was not motivated by financial gain or malice. C.L. expressed the hope that in the event her father was convicted of the charges he would not be sentenced to a term of imprisonment. She testified that on one occasion when she was in grade eight, she was sleeping in her bedroom when she awoke to find her father kneeling over top of her. He was rubbing her chest and he told her, “Daddy won’t hurt you.” C.L. testified that after her mother screamed, the appellant left the bedroom. The appellant described an incident where he went into C.L.’s bedroom and pulled her by the ankles out of bed onto the floor when she refused to go to school. Upon his arraignment the appellant pled guilty to the lesser but included offence of assault in accordance with his version of what happened. Taking account of the whole of the evidence on count 10, the trial judge rejected the appellant’s denial that he had indecently assaulted his daughter and found him guilty on this count and further found that the appellant’s evidence did not leave him with any reasonable doubt of his guilt.

[13] While the trial judge’s reasons reflect his conclusions and not his complete thought processes, overall, the reasons fulfilled their function of providing a meaningful basis for appellate review.

The Admissibility of the Similar Fact evidence

[14] The submissions relating to this ground of appeal relate only to counts 9, 12 and 14, relating to the evidence of S.C., C.S., and S.L. The trial judge carefully considered the test for admitting similar fact evidence. In relation to S.C. and C.S., there was a single touching of the breast over the clothes when the particular complainant had just started to develop breasts. Significantly, in each instance there was a chance of the appellant getting caught because other persons were in the immediate vicinity. In all the circumstances, we would not interfere with the trial judge’s decision to admit the evidence relating to counts 9 and 12 as similar fact evidence on the other count to counteract the inference that persons would not be expected to engage in misconduct where there is a risk of detection because of the immediate presence of others. As a result, we would maintain the conviction in relation to these counts.

[15] In relation to count 14, S.L.’s breasts were fully developed, there was a touching of her groin as well as her breasts over her clothes, and the touching took place allegedly on numerous occasions in relative privacy. The evidence of S.C. and C.S. should not have been admitted as similar fact evidence on count 14 as the degree of similarity was not persuasive. The trial judge therefore erred in using the evidence of S.C. and C.S. to convict the appellant on count 14. Although it follows that the trial judge also erred in admitting the evidence of S.L. from count 14 as similar fact evidence in relation to counts 9 and 12, in light of the proper admission of the evidence concerning those two counts in relation to each other, we conclude that the verdict would have been the same in any event.

[16] In the result, we would allow the appeal in respect of count 14, set aside the conviction and enter an acquittal. In relation to the other counts of which the appellant was convicted, we would dismiss the appeal.

“K.M. Weiler J.A.”

“Janet Simmons J.A.”

“R.G. Juriansz J.A.”