DATE: 20040609
DOCKET: C38866
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – WILLIAM ALBERT BARTON (Appellant)
BEFORE:
LASKIN, CHARRON and LANG JJ.A.
COUNSEL:
Delmar Doucette
for the appellant
Thomas D. Galligan
for the respondent
HEARD:
June 1, 2004
On appeal from the convictions entered on November 17, 1998 and the sentence imposed on November 27, 2000 by Justice Edwin B. Minden, sitting with a jury.
E N D O R S E M E N T
Released Orally: June 1, 2004
[1] The appellant was convicted of numerous offences arising out of his relationship with the complainant. The two crucial convictions, however, were for unlawful confinement and sexual assault (counts 6 & 7). Following these convictions the appellant was found to be a dangerous offender and he received an indeterminate sentence. On the other convictions the appellant received a total sentence of two years and nine months, which he has already served.
[2] The appellant appealed his convictions on counts 1, 2, 4, 6, 7 and 8 and the dangerous offender designation. On his conviction appeal the appellant raised four grounds of appeal. On his sentence appeal he argued only that the trial judge erred in failing to consider the long term offender provisions in the Criminal Code.
[3] We called on the Crown only on the first two grounds of appeal against conviction, which in this case are related. These two grounds are:
The failure of the trial judge to adequately instruct the jury as the possibility of collusion between the complainant and her fifteen year old son; and
The failure of the trial judge to give the jury a stronger instruction on the inconsistencies between the son’s preliminary inquiry evidence and his evidence at trial.
[4] We decline to give effect to either submission for three main reasons:
The trial judge did instruct the jury – adequately in our view – on the importance of taking into account a witness’s prior inconsistent statements in assessing that witness’s credibility and reliability. As important, the trial judge specifically drew to the jury’s attention one of the major inconsistencies between the son’s preliminary inquiry evidence and his testimony at trial. Moreover, the trial judge cautioned the jury to take into account the circumstances under which the son made his mid‑trial statement and the son’s evidence that no one had influenced him to change his position.
In our view, this was not a case in which the defence demonstrated actual collusion or deliberate tailoring of the evidence or perjury on the son’s part. Although, obviously the opportunity for the tailoring of evidence existed, the jury had the son’s explanation. In this short trial the jury was undoubtedly alive to the defence’s argument and in the best position to assess it.
Defence counsel at trial (not Mr. Doucette), did not ask for a specific instruction on collusion or a more forceful instruction on the son’s previous statements, and he made no objection to the charge on either of the two points now raised on appeal. Although the failure to object is not fatal on appeal, it is a strong indicator of counsel’s view of the fairness of the charge.
[5] For these reasons the appeal against conviction is dismissed.
[6] On the sentence appeal, in the trial judge’s thorough and exemplary reasons on the dangerous offender application, he took into account (at p. 10 of his reasons) and rejected the submission that a long term offender designation was appropriate for this appellant. Accordingly, although leave to appeal sentence is granted the sentence appeal is dismissed.
“John Laskin J.A.”
“Louise Charron J.A.”
“S. Lang J.A.”