DATE: 20050422

DOCKET: C40363

COURT OF APPEAL FOR ONTARIO

DOHERTY, MOLDAVER and GILLESE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

Gregory Lafontaine

for the appellant

• and -

O.T.

John Neander

for the appellant

Appellant

HEARD: April 19, 2005

On appeal from conviction by Justice Francine E. Van Melle of the Superior Court of Justice, sitting without a jury, dated April 29, 2003, and the sentence imposed dated August 14, 2003.

BY THE COURT

[1] The appellant was convicted of assault and sexual assault following a ten-day trial before Van Melle J. without a jury. He was found not guilty of three other counts in the indictment. On the charge of assault, the appellant was sentenced to a penitentiary term of two years; on the charge of sexual assault, he received a sentence of six months concurrent. He appeals from conviction and sentence.

THE ASSAULT CHARGE

[2] The charge of assault was said to have occurred on February 19, 1997. According to the complainant, while she and the appellant were drinking coffee in the kitchen of their home, the appellant became enraged during a discussion about some friends who were undergoing a divorce. He grabbed the complainant by her pyjamas and threw her down a set of stairs. After she regained her balance, the appellant threw her down another set of stairs. She was now in the basement. The appellant pursued his attack. According to the complainant, he took her to the dryer and emptied a basket of dirty socks over her head. He then forced her to the floor and began to choke her. She started to gag and thought she was going to die. She mentioned the name of their daughter twice and the appellant let go of her. He then proceeded to kick her about ten times.

[3] The appellant testified and denied the assault. He recalled having an argument with the complainant around the time in question but claimed that he did not lay a hand on her. Rather, after the argument finished, he went to the garage and had a cigarette. While in the garage, he said that he kicked the tire of his wife’s mini-van and injured his ankle. That is the explanation he gave to his fifteen-year-old daughter E. when she came home later that day and noticed him limping. According to E., when she asked the appellant why he was limping, he stated that “he somehow, he got mad and that he somehow kicked the truck”. E. also testified that her mother was wearing a scarf in the house that night which she found to be “weird”. Normally her mother did not wear a scarf in the house unless she was sick.

THE SEXUAL ASSAULT CHARGE

[4] In January 2001, the complainant came to believe that the appellant was being unfaithful. On the day in question, she decided to confront him with this and also the manner in which he had treated her throughout the course of their marriage. To that end, during the day, she wrote out on large calendar-size pages all of the terrible things the appellant had made her endure over their thirty-one years of marriage. She anchored the pieces of paper to the floor with glasses that were partially filled with wine. She also consumed at least one glass of wine and threw another glass of wine at the ceiling in the kitchen. Over the course of the day, the complainant left seventeen telephone messages for the appellant at work and when she finally reached him on the eighteenth call, she told him that she was going to tell him everything she needed to tell him when he got home.

[5] According to the complainant, the appellant arrived home from work after 4:00 p.m. and when he read what she had written on the calendar-size pages, he became “hard like wood”, threw her over his shoulder, took her to the bedroom and proceeded to rape her. In the words of the complainant “he did what he thought was punishment”.

[6] The appellant gave a very different version. He claimed that when he arrived at home, he saw papers lying on the floor. Most of them contained drawings of him having sexual relations with another woman. He denied being upset with the many calls his wife had made to him that day. Indeed, until he received the eighteenth call, he was expecting to come home and have a “nice talk” with her. On the eighteenth call, however, he believed that she was “too drunk” to have this “nice talk” and “too drunk to even get mad at her”.

[7] According to the appellant, after seeing the papers on the floor, he found the complainant “sleeping in the bathroom on the toilet bowl”. As a result, he helped her up the stairs and put her to bed. She awoke briefly while going up the stairs but fell asleep shortly after being placed on the bed. The appellant denied having sexual intercourse with the complainant that day.

CONVICTION APPEAL

[8] With respect to conviction, the appellant raises two chief complaints. First, he maintains that the trial judge failed to give adequate reasons for rejecting his evidence and accepting the complainant’s evidence. Second, he submits that the trial judge did not subject the complainant’s evidence to the same kind of scrutiny that she brought to bear on his evidence.

[9] We would not give effect to either of these grounds. The trial judge gave brief but succinct reasons for rejecting the appellant’s evidence. In the circumstances, we think they were adequate.

[10] On the charge of assault, the trial judge found that the appellant’s evidence “was neither intrinsically nor extrinsically consistent” and that “he rejected reasonable propositions … put to him by the Crown that made his version of [the] events less than believable”. Specifically, she commented on his reluctance to admit that he had become upset over the argument in the kitchen until he was pressed by the Crown to explain why he had kicked the tire of his wife’s mini-van. His lack of candour on that matter impacted on his explanation as to how he had injured his ankle. In short, it provided the trial judge with a basis for rejecting his explanation and finding instead that the injury occurred when he kicked the complainant in the basement of their home.

[11] On the charge of sexual assault, apart from her general concerns about the appellant’s intransigence and the external and internal inconsistencies in his evidence, the trial judge rejected as implausible his testimony that he was “calm about the telephone calls and the twenty-two pieces of paper that he found on the floor” when he returned home. Rather, she was satisfied that “[the complainant’s] behaviour … undoubtedly provoked [him]” but that did not provide him with an “excuse for sexual assault”.

[12] In sum, while we accept that the trial judge could have provided more fulsome reasons for rejecting the appellant’s testimony, in the circumstances, we are satisfied that her reasons were both adequate and reasonably justified on the evidence. In this vein, we note that in large measure, the trial judge tailored her reasons to the key arguments advanced by the defence and she explained why she was not prepared to give effect to them. When her reasons are read as a whole, we are satisfied that the appellant would have understood why his testimony was rejected.

[13] Turning to the trial judge’s assessment of the complainant’s evidence, the appellant contends that the trial judge failed to address the many frailties in her evidence and had she done so, she might well have considered it unsafe to convict the appellant on such shaky evidence.

[14] In rejecting that submission, we acknowledge that the trial judge did not specifically address the frailties in the complainant’s evidence. In the circumstances, however, we do not view that deficiency as fatal.

[15] First, we note that the complainant was on the witness stand for a considerable period of time. Indeed, she was cross-examined for the better part of two days. As such, the trial judge was uniquely positioned to assess the credibility and reliability of her testimony.

[16] Second, the frailties relied upon by the appellant relate mostly to peripheral matters as opposed to matters having a direct bearing on the offences in question. The one exception involves the complainant’s drinking habits around the time of the alleged sexual assault in 2001. On that matter, the complainant testified that she did not drink often and that she did not get drunk. Her evidence in that regard was virtually unchallenged. Any evidence to the contrary was either speculative or outdated and therefore of no value.

[17] Third, to the extent that the complainant’s evidence may have suffered from frailties, we note that in convicting the appellant, the trial judge did not rely solely on the complainant’s evidence; rather, in each instance, she relied upon independent evidence that confirmed the complainant’s testimony and lent support to the complainant’s version of the events. In each case, that evidence came from the couple’s daughter, E., whom the trial judge found to be neutral as between the complainant and the appellant.

[18] On the assault charge, E.’s evidence about the appellant’s limp and her mother’s “weird” behaviour on the night of the alleged assault lent credence to the complainant’s testimony. In the circumstances, once the trial judge rejected as implausible the appellant’s explanation as to why he was limping, E.’s evidence supported the complainant’s testimony that the injury to the appellant’s ankle occurred from kicking her in the basement after he stopped choking her.

[19] On the sexual assault charge, the complainant’s disclosure of the assault to E. a few weeks after the event was admissible to rebut the defence contention that the complainant fabricated the allegation at a later time as part of her strategy to extract a financially more favourable divorce settlement. E.’s evidence could lend credence to the complainant’s allegation that she was sexually assaulted. The trial judge quite properly referred to that evidence in her analysis of the sexual assault charge.

[20] In the end, although it would have been preferable had the trial judge dealt more explicitly with the frailties in the complainant’s evidence and given more extensive reasons for accepting her testimony, we believe that the reasons were adequate in the circumstances.

[21] In this regard, it did not escape the trial judge that some of the complainant’s behaviour “may not have been completely rational”. The trial judge, however, was satisfied that such behaviour was “the result of how upset she was by the situation and what she saw as many years of mistreatment by her husband”. In our view, that assessment was open to the trial judge. Accordingly, we would not give effect to the appellant’s primary grounds of appeal.

[22] The only other issue raised by the appellant is that the trial judge misunderstood the principles in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and shifted the burden of proof. We see no merit in that submission.

[23] The trial judge outlined the W.(D.) principles in her reasons and she gave effect to them in acquitting the appellant on the three other counts in the indictment. In the circumstances, we have no doubt that she understood the principles and applied them correctly, both when acquitting the appellant on certain counts and convicting him on others.

[24] Accordingly, we would dismiss the appeal from conviction.

SENTENCE

[25] The appellant does not suggest that the trial judge committed any errors in principle in arriving at a total sentence of two years for the offences in question. Rather, he maintains that having regard to his background and history and his excellent potential for rehabilitation, the trial judge should have imposed a conditional sentence of two years less one day.

[26] We would not give effect to that submission. The appellant committed two offences involving serious violence against his spouse. In each instance, he engaged in conduct that was degrading and controlling and designed to humiliate the complainant. In the circumstances, the overriding principles of general and specific deterrence and denunciation militate against a conditional sentence. In our view, although we might have imposed the greater sentence on the charge of sexual assault, the total sentence of two years was fit and we see no basis for interfering with it.

[27] Accordingly, leave to appeal sentence is granted but the appeal is dismissed.

Signed: “Dohert J.A.”

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”

RELEASED: “DD” April 22, 2005