W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:
486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.
DATE: 20050704
DOCKET: C40943
COURT OF APPEAL FOR ONTARIO
LASKIN, BLAIR and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Roger Shallow
for the respondent
Respondent
- and -
F.P.
Michael Davies
for the appellant
Appellant
Heard: April 5, 2005
On appeal from the conviction entered by Justice Gerald Morin of the Superior Court of Justice, sitting with a jury, on July 10, 2002 and from the sentence imposed by Justice Morin on October 3, 2003.
LASKIN J.A.:
A. OVERVIEW
[1] From the fall of 1995 until November 1998 (except for a brief period in 1996), the appellant F.P. lived with S.M., her son, and her twin daughters, V. and A. in a farmhouse near Carleton Place, Ontario. The appellant was charged on a fourteen-count indictment with sexually abusing V. and A. during the three years that they lived together. The twins were eight years old when the alleged abuse began and eleven years old when it ended.
[2] The appellant was tried in July 2002 before Morin J. and a jury. The Crown principally relied on the evidence of the two complainants. The appellant testified and denied that he had committed any sexual offences. The jury, however, found him guilty on twelve of the fourteen counts. The trial judge imposed a sentence of eight years in the penitentiary in addition to four months’ pre-sentence custody.
[3] The appellant, now forty-seven years of age, appeals both his convictions and his sentence. On his conviction appeal, he makes two submissions. First, he submits that the jury’s verdict was unreasonable. Second, he submits that the trial judge erred in admitting medical evidence that each complainant suffered trauma from vaginal penetration. The appellant argues that this evidence was irrelevant and prejudicial because neither complainant testified that she was vaginally penetrated. The appellant therefore submits that the admission of this evidence deprived him of a fair trial. On his sentence appeal, the appellant submits that the sentence imposed by the trial judge was demonstrably unfit, especially in the light of the absence of any finding of intercourse.
B. THE CHARGES AGAINST THE APPELLANT
[4] The appellant was charged with fourteen counts of sexual abuse. The trial judge directed a verdict of acquittal on the first count, leaving thirteen counts for the jury to consider. Counts two to six pertained to V.; counts seven to fourteen pertained to A. The appellant was charged with sexual interference, invitation to sexual touching, sexual assault, and uttering threats. The Crown alleged that the sexual acts occurred in various rooms in the farmhouse and in buildings and fields surrounding the house.
[5] The jury acquitted the appellant on count five (anal intercourse). It found the appellant guilty on the other twelve counts.
[6] The charges against the appellant evidence of the complainants supporting each count may be summarized as follows:
Count two: The appellant was charged with sexual touching of V. with his penis. V. testified that this incident occurred in the living room of the farmhouse. The appellant made V. lie down. He pulled her pants down, then undid his zipper, pulled out his penis and, to use V.’s words, “stuck it in my bum.”
Count three: The appellant was charged with inviting V. for a sexual purpose to touch him on his penis with her hands. V. testified that the appellant made her touch and rub his penis. These incidents took place in her mother’s bedroom, the hayloft, the pump house and the fields near the barn.
Count four: The appellant was charged with inviting V. for a sexual purpose to touch his penis with her mouth. V. testified that this incident occurred in her mother’s bedroom. The appellant put his penis on her mouth and moved her head up and down with his hands. V. testified that “white stuff” came out of his penis.
Count five: The appellant was charged with sexual assault by putting his penis in V.’s anus. Although V. gave evidence about this count, the jury acquitted the appellant of this charge.
Count six: The appellant was charged with uttering threats to V. to cause her death. V. testified that the appellant told her not to tell anyone what he was doing or he would kill her, her mother, her brother and her sister. V. believed he would do so because he kept guns in the closet.
Count seven: The appellant was charged with sexual touching of A. with his hand. A. testified that on occasion the appellant touched her breasts with his hands and her vagina with his fingers.
Count eight: The appellant was charged with the sexual touching of A. with his mouth. A. testified that the appellant touched her vagina with his mouth.
Count nine: The appellant was charged with sexual touching of A. with his penis. A. testified about several incidents in support of this count. She described an incident in her bedroom. She was sick in bed and, together with the appellant, was alone in the house. The appellant came in and got under the blankets. He pulled down A.’s pants and his own pants. The appellant then put his penis on her vagina and moved it back and forth. Afterward, A. started crying because it hurt.
A. testified about an incident in the upstairs bathroom. She had run a bath and taken her clothes off. The appellant came into the bathroom, took out his penis, put it on her vagina and moved it back and forth.
A. also gave evidence about an incident in the appellant’s bedroom. The appellant called her into the room and told her to lie down with him. She said no, but he said that she had to do so. Again he pulled down his pants and hers, and put his penis on her vagina.
A. also described an incident in the barn, which occurred at night. She and the appellant were taking part in a game of barn tag and were hiding in the barn. The appellant pulled down their pants, put his penis on her vagina and moved it back and forth.
Finally, A. gave evidence about an incident in the appellant’s truck. She had gone with the appellant to help him cut wood. The appellant stopped the truck and helped A. into the backseat. He pulled down her pants, put his penis on her vagina and rubbed it back and forth.
Count ten: The appellant was charged with inviting A. for a sexual purpose to touch his penis with her hands. A. described an incident in the living room. She, V. and the appellant were home alone. The appellant grabbed A.’s arms and pulled her down on the couch. Then he pulled her pants down, put her hands on his penis, his hands on hers and moved them up and down.
Count eleven: The appellant was charged with inviting A. for a sexual purpose to touch his penis with her mouth. A. described an incident where the appellant put his penis on her mouth and told her to move her mouth up and down. “White stuff” came out.
Count twelve: The appellant was charged with sexual assault by putting his penis in or on A.’s anus. A. testified that on one occasion the appellant put his penis on her bum and moved it back and forth.
Count thirteen: The appellant was charged with a sexual assault on A. by putting his penis on or in her vagina. A. testified about another incident in the truck. The appellant told her they were going to get a pony. He stopped the truck, pulled down their pants, put his penis on her vagina and moved it back and forth. A. was on her knees with her hands on the window. She was unsure whether the appellant’s penis went into her vagina. At the sentencing hearing the trial judge resolved this issue in favour of the appellant.
Count fourteen: The appellant was charged with threatening A. She testified that she never told her mother what the appellant had done to her because he threatened to kill her if she did. A. said that she believed the appellant because he had guns and knives.
C. CONVICTION APPEAL
First Issue: Is the verdict unreasonable?
[7] The appellant contends that the jury’s verdict is unreasonable. An appellant always bears a heavy burden to show an unreasonable verdict. The Yebes test requires an appellant to demonstrate that the verdict is not one that a properly instructed trier of fact acting judicially could reasonably have rendered: see R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 185.
[8] In a case such as this one, this burden is even more onerous for two reasons. First, this case turns entirely on the credibility of the two complainants and the appellant. This is not to say that credibility findings are immune from challenge for an unreasonable verdict. However, in applying the Yebes test to findings of credibility, the reviewing court must take into account the “special position” of the trier of fact in making these findings and should show “great deference” to them: see R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at 131-2.
[9] Second, this was a jury verdict, not the verdict of a judge. In a judge-alone trial, an appellate court ordinarily has, and always should have, the benefit of the judge’s reasons for the verdict. An appellate court can therefore identify any defect in analysis that may have led the judge to an unreasonable conclusion. Juries, of course, do not give reasons for their decisions. So, in a jury trial – assuming no error in the charge – an appellate court can have no way of knowing how the jury reached its conclusion: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at 21-23.
[10] With these considerations in mind, I turn to whether the appellant has shown that the jury’s verdict was unreasonable. In analyzing this issue, the court’s task is to apply the Yebes standard “through the lens of judicial experience” by independently examining and weighing the evidence within the limits of appellate review: see Biniaris, supra at 24. Here, the appellant argues that the evidence of each complainant is so unreliable that their evidence, taken together, cannot sustain the reasonableness of the verdict. The appellant points out, correctly in my view, that each complainant testified at trial to some matters she earlier denied or had not mentioned, and that each complainant gave evidence at trial inconsistent with a pretrial statement or with testimony she had given at one of the appellant’s two previous trials. The appellant also points out, again correctly in my view, that these contradictions or inconsistencies bear on material, not peripheral, matters. Here are examples of the inconsistencies on which the appellant relies:
(a) In connection with V.’s evidence
▪ At trial, V. testified that the appellant had put his penis on her bum. In police interviews, she either never mentioned this or denied that it happened.
▪ At trial, V. testified that the incident in the truck was one she always remembered. Previously, however, she told a police officer and a representative of the Children’s Aid Society (“CAS”) that no incident in the truck ever occurred.
▪ At trial, V. testified that she saw “white stuff” coming out of the appellant’s penis. In her videotaped interview statement, she said that she did not see anything come out of the appellant’s penis.
▪ At trial, V. testified that she had no memory of the appellant forcing her to put his penis in her mouth following a game of barn tag. However, at one of the appellant’s previous trials, she testified that “he made me rub his private and then he made me put it in his mouth”.
▪ At trial, V. gave evidence that only one incident occurred in the pump house. In an interview with the police and a representative of the CAS, she said that the appellant sexually assaulted her in the pump house approximately twenty-three times.
▪ At trial, V. testified that during the pump house incident, the appellant forced her to put her hands on his penis. Previously, she had said that the appellant had forced her to put her mouth over his penis.
(b) In connection with A.’s evidence
▪ At trial, A. denied that V. had witnessed any of these sexual assaults. However, A. agreed that she had told the police and a representative of the CAS that V. had seen many of the sexual acts.
▪ At trial, A. testified that the sexual acts occurred every second day. At one of the appellant’s earlier trials, she said that she could not remember how often they happened.
▪ At trial, A. testified that the appellant put his finger in her vagina. At a previous trial, she testified that she could not remember whether he had done so.
▪ At trial, A. was asked whether the appellant put his penis in her mouth every time he did something of a sexual nature and whether, when he did so, “white stuff” came out. She answered “no” to both questions. In her police interview, she answered both questions “yes”.
▪ At trial, A. testified that the appellant put his finger in her vagina when they were alone in the master bedroom. At the second of the appellant’s previous trials, she said that she could not remember whether he had done so. At the first of his previous trials, she testified in-chief that the appellant touched her over her clothes, but on cross-examination, claimed that he forced her to have oral sex.
▪ At trial, A. testified that the appellant sometimes gave her money after the assaults. At a previous trial, she said that he never gave her anything.
▪ At trial, A. testified that the appellant threatened her more than once. At a previous trial, she could not remember whether he threatened her more than once.
▪ At trial, A. testified that after the incidents in the truck, the appellant drove her home. In her interview with the police, A. said that after one of the incidents, she got out of the truck and ran home.
▪ At trial, A. testified that she thought one of the incidents occurred on her seventh birthday. At a previous trial, she said that she could not remember whether anything happened on any birthday. In fact, A. turned seven in June 1995. None of the incidents occurred before October 1995.
[11] In assessing this ground of appeal, two preliminary considerations are important. First, the complainants were between eight and eleven years of age when the incidents they testified about occurred. By the time of the trial, they were fifteen years old. Given their youth at the time the abuse took place and the significant period of time that passed before the trial, some variation in their memories and in the accounts they told are to be expected. Indeed, they frankly acknowledged that they had a hard time recalling the details of the incidents.
[12] Second, the trial judge thoroughly instructed the jury on the inconsistencies and the contradictions in the evidence of each complainant. The appellant makes no objection to the trial judge’s charge.
[13] What then are we to make of these inconsistencies? Are they sufficiently serious to undermine the reliability of the complainants’ trial testimony and, thus, the reasonableness of the jury’s verdict? In my view, they are not.
[14] Despite the inconsistencies, the core of each complainant’s testimony remained the same: repeated incidents of sexual interference, invitation to sexual touching, and sexual assault in and around the farmhouse, coupled with threats not to tell anyone about these incidents.
[15] Moreover, the inconsistencies on which the appellant relies did not affect many of the counts in the indictment. They did not affect the following incidents V. testified about: the appellant’s touching her with his penis in the living room of the farmhouse (count two); inviting her to touch his penis in the hayloft and in the master bedroom (counts three and four); and threatening her (count six). Nor did the inconsistencies affect the following incidents A. testified about: the appellant’s touching of her breasts with his hands (count seven); touching her vagina with his mouth (count eight); putting his penis on her vagina in his bedroom, on another occasion in the bathroom, on two occasions in the truck, and once in the barn (counts nine and thirteen); and putting his penis on her bum (count twelve).
[16] Further, any argument that the jury was not alive to these inconsistencies is belied by its acquittal on count five, which charged the appellant with sexual assault on V. by putting his penis in her anus. Although V. testified at trial that the appellant had done so, she gave contradictory statements to the police. In the face of these contradictions, her trial testimony did not convince the jury.
[17] In the light of these considerations, I am not persuaded that the complainants’ evidence is unreliable. Nor am I persuaded that either the jury’s acceptance of their evidence or its findings of guilt are unreasonable. I would not give effect to this ground of appeal.
Second Issue: Did the trial judge err in admitting medical evidence on vaginal penetration?
(1) The context
[18] The appellant submits that the trial judge wrongly permitted the Crown to lead evidence from two doctors that both girls had experienced vaginal trauma consistent with penile penetration. The appellant argues that this evidence was irrelevant because neither complainant testified the appellant had put his penis in her vagina. Alternatively, the appellant argues that, at best, this evidence was marginally relevant and should have been excluded because its prejudicial effect outweighed its probative value. For either reason, the appellant submits, the admission of this evidence deprived him of a fair trial. To put this submission in context, I will briefly review the charges against the appellant, the testimony of the two complainants about vaginal penetration, and the evidence of the two doctors.
[19] Count thirteen of the indictment alleges that the appellant committed a sexual assault on A. by putting his penis on or in her vagina (my emphasis). During her testimony about the incident in the back of the appellant’s truck, A. was asked whether he put his penis on or in her vagina and she replied that she was not sure:
Q. Now, you’ve mentioned that he – he would put his penis on your vagina at times. Is there a difference between on and in?
A. Yes.
Q. And what’s the difference between on and in?
A. On is just rubbing it on top, and in is just in it.
Q. Okay. And do you know if he put it – was it always on, or was it ever in?
A. I’m not sure.
[20] No count in the indictment alleged that the appellant had put his penis in V.’s vagina and V. did not give evidence that he had done so.
[21] Nonetheless, the Crown led evidence about vaginal penetration from two doctors – Dr. Rob Courchene, the complainants’ paediatrician; and Dr. Sahar Al-Bakkal, a physician at the historical sexual abuse clinic in the Children’s Hospital of Eastern Ontario. The evidence pertained not just to A., but to V. as well. The Crown led this evidence without objection from the defence.
(a) Dr. Courchene’s evidence
[22] The trial judge ruled that Dr. Courchene was qualified to give evidence about his observations as V.’s and A.’s treating physician and to give opinions as a medical doctor. He testified that he saw A. in his office on September 1, 1998. She was complaining of difficulty urinating. Either A. or her mother also asked about redness on A.’s vagina. Dr. Courchene performed a urine specimen dip to test for a urinary infection and did a vaginal swab to test for infection. He also examined A. and found some redness on the outside of her vagina. He concluded that she was probably suffering from a bladder infection, and also a little bit of vaginitis. Dr. Courchene explained that vaginitis is a non-specific term for inflammation of the vagina and the area around the vagina. He testified about the possible causes of vaginitis. Although he acknowledged that sexual penetration was a possible cause, he said that there were many possible causes:
Q. And can you tell me, dealing back with the vaginitis what are some possible causes of vaginitis?
A. Um, again it’s – that’s a very non-specific term. “-itis” in medicine means inflammation, it doesn’t have – pertain to the cause. Any sort of – any sorts of contacts, um, soaps, detergents, uh, changes in weather, heat, the kind of weather we’ve had the last few days, that sort of humidity can cause the inflammation. Um, anything you wash the clothes or underwear, pyjamas in, detergents, um, allergenic type solutions. Uh, infection, um…yeast – yeast being – yeast infection being the most common. Everybody has yeast on their skin and in certain moist, uh, climates or environments the yeast can invade the skin and cause a redness in that area of the body, a vaginitis. And then there’s the sexually transmitted infections, viruses, et cetera.
Q. Can trauma cause that?
A. Uh, yes.
Q. What sorts of trauma might cause something like inflammation around that area?
A. Um, any – any sort of trauma at all, um, I guess at the extreme, penetration can – can cause trauma. Um, riding a bike with jeans, the – the friction of the pants moving back and forth could cause – could, um, cause vaginitis.
[23] On cross-examination, Dr. Courchene testified that vaginitis is “very common” in women who have begun menstruating, but agreed that it is “not unusual” to see it in younger girls. He also agreed that while an “extreme” cause of vaginitis would be penetration, there are many other causes that have nothing to do with penetration or trauma.
[24] Overall, I regard Dr. Courchene’s evidence as neutral. Although Dr. Courchene agreed that penetration might have caused A.’s vaginitis, he also emphasized that this was a very uncommon cause of a very common condition. Even if his evidence was irrelevant, it was not prejudicial to the appellant, and its admission did not result in an unfair trial.
(b) Dr. Al-Bakkal’s evidence
[25] The more critical and potentially prejudicial evidence against the appellant came from Dr. Al-Bakkal. The trial judge ruled that she was qualified to give her observations and opinions in the field of paediatrics.
[26] Dr. Al-Bakkal saw V. and A. in the clinic on January 21, 1999. She conducted a standard head-to-toe examination, including a genito-urinary exam, for each girl.
[27] Dr. Al-Bakkal testified that V.’s general exam was unremarkable. On the genito-urinary exam, she was found to have a widened hymenal opening. The opening was about one centimetre in width, with thin tissue remnants only. Dr. Al-Bakkal explained that for girls in V.’s age group, the hymenal opening is generally about four to five millimetres in width, with intact borders. In V.’s case, however, “there was only remnants of the borders, there was no borders to start with, is [sic] just remnants.” Dr. Al-Bakkal explained these findings were compatible with vaginal sexual abuse:
Q. As a result of your observation that her hymenal opening was widened to about one centimetre in width with thin tissue remnants only what conclusion did you come to about V.?
A. Um, in isolation from what she had told me, or she had told the professionals it means that there was, uh, lower – a large objects [sic] was forced into the vagina enough to have, uh, damaged the hymen. In – in association, or in concordance with what she confessed it’s compatible with – most compatible with penile penetration or vagina sexual abuse.
[28] Dr. Al-Bakkal went on to testify that she was able to see the posterior vaginal folds (the rugae) through both V.’s and A.’s vaginal openings. She explained that the rugae are only visible if the hymen has widened and opened enough.
[29] Dr. Al-Bakkal’s observations of A. were very similar to her observations of V. A.’s genito-urinary exam revealed that the hymenal opening was about one centimetre in width, with only remnants of membranes visible. Rugae were observed on the posterior vaginal wall. Dr. Al-Bakkal also found a “tiny bump” on the hymen. She explained that this was a scar from a previous hymenal tear or injury.
[30] On cross-examination, Dr. Al-Bakkal agreed that some girls are born with widened hymenal openings, but said that those cases look different. She disagreed with the suggestion that hymenal widening could be caused by the insertion of a cotton swab or a finger. Dr. Al-Bakkal was also asked if an object outside the vagina could cause loss of hymenal tissue. She responded that an object may cause an acute tear, but “would not give the same picture, the one seen observed [sic] on those patients.” She concluded that there had been penetration:
Q. Right. In terms of your observation of both A. and V. your conclusion was that there was a penetration.
A. Correct.
Q. By the same object.
A. Correct.
Q. So my question, just to be clear, is if there were an object on the outside of the vagina and no penetration that would not be consistent with what your findings were of both A. and V.
A. Okay, I’d have to define the size and what’s [sic] that object could be in order for me to be specific whether it’s yes or no.
Q. Could – so – let’s try it another way. Could any object outside of the vagina, not inserted into the vagina, cause what you observed in V.?
A. Uh, I largely [sic] doubt so. I couldn’t think of anything else.
(2) Analysis
[31] The opinion evidence of Dr. Al-Bakkal was relevant to count thirteen in the indictment, the count that alleged that the appellant sexually assaulted A. by putting his penis on or in her vagina. Moreover, A.’s evidence provided an evidentiary foundation for the opinion. Whether the appellant vaginally penetrated A. was a material issue in the case. That A. was “not sure” if the appellant’s penis had been on or in her vagina does not diminish the relevance of the evidence. The opinion evidence might have assisted the jury to resolve this issue.
[32] The opinion evidence of Dr. Al-Bakkal was, however, irrelevant to any of the counts in the indictment concerning V. In none of those counts did the Crown allege that the appellant had penetrated V.’s vagina. And, as I have said, V. did not testify that the appellant had vaginally penetrated her. Moreover, the trial judge did not instruct the jury that the opinion evidence of Dr. Al-Bakkal was not capable of assisting it in deciding on any of the counts pertaining to V.
[33] The appellant submits that the combined effect of admitting the expert evidence, at least in relation to V., and the absence of a proper limiting instruction prejudiced him to such an extent that it denied him a fair trial. I do not agree with this submission.
[34] I agree that the trial judge erred in law in admitting Dr. Al‑Bakkal’s evidence regarding V.’s genito-urinary exam. I also agree that he compounded his error by failing to give a proper limiting instruction. However, in my view, neither the admission of this evidence nor the absence of a proper limiting instruction deprived the appellant of a fair trial. The Crown is, therefore, entitled to rely on the curative proviso.
[35] At bottom, the appellant’s contention is that Dr. Al-Bakkal’s testimony provided the jury with a clear, objective and expert anchor to find sexual abuse notwithstanding the inconsistencies in the evidence of the complainants. I do not accept this contention for several reasons.
[36] First, though likely beyond the knowledge of most triers of fact, Dr. Al-Bakkal’s evidence was not overly technical or confusing. Her evidence would not have triggered the concern that “dressed up in scientific language which the jury does not easily understand” the jury would have accepted it as “virtually infallible”: see R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at 21.
[37] Second, the trial judge explained to the jury that it should not place undue weight on the medical evidence. He cautioned the jurors as follows:
With respect to expert opinion evidence you have heard from two medical doctors who provided you with direct evidence of their observations and opinion evidence arising out of their observation, and the law permits persons who are qualified as experts in a particular field to give evidence of their opinions in that field. The opinions of experts are just like the testimony of any other witness. Just because an expert gives an opinion does not require you to accept that opinion. You are the sole judges as to whether you will accept any opinions that you heard from the doctors to assist you in this case [Emphasis added].
[38] In the light of this instruction, I think the jury would have understood it was not obliged to accept Dr. Al-Bakkal’s evidence. Even if the jury accepted the doctor’s evidence that A. had a widened hymenal opening, it did not have to accept Dr. Al‑Bakkal’s opinion that penile penetration was the cause.
[39] Third, although the trial judge did not give the limiting instruction argued for by the appellant, he did instruct the jury that it was not permitted to apply evidence pertaining to one count to any other count in the indictment:
Understand this as well, while you will consider each count separately, that separate consideration must be based only on the evidence placed before you. It is particularly important that you understand this direction in this case where there are two different complainants and 14 different counts…[Y]ou must look at the evidence that relates to a particular count in determining Mr. P.’s guilt or innocence with respect to that count, and you must not look to evidence that relates to other counts.
[40] Thus, the jury would have understood that it could not use the medical evidence concerning A.’s hymenal widening to buttress the charges relating to V.
[41] Fourth, the defence did not object to the medical evidence or to the trial judge’s charge concerning it. Nor did the defence ask for the limiting instruction sought on appeal. Although the failure to object is not dispositive, it is some indication that either defence counsel at trial did not regard the medical evidence as overly prejudicial or he made a tactical decision not to object to it.
[42] Fifth, and perhaps most important, the appellant’s contention does a disservice to the common sense of the jury. As Dickson C.J. emphasized in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670 at 692, the strength of our criminal justice system rests on the intelligence and common sense of the ordinary juror. In this case, the jurors’ common sense would have told them that even if they accepted Dr. Al-Bakkal’s evidence, that evidence could not help them decide whether the appellant was guilty of the counts pertaining to V. To hold otherwise would devalue the very common sense of the jury Chief Justice Dickson emphasized. I would not give effect to this ground of appeal.
[43] For all these reasons, the admission of the medical evidence concerning V. occasioned no substantial wrong. I would apply the curative proviso under s. 686(1)(b) (iii) of the Criminal Code. I would not give effect to this ground of appeal.
D. THE SENTENCE APPEAL
[44] The trial judge gave thorough and careful reasons for sentence. He canvassed the relevant sentencing principles in ss. 718.1 and 718.2 of the Criminal Code. He imposed a sentence of eight years in the penitentiary in addition to four months of pre-sentence custody, for which he gave the appellant one-for-one credit.[^1]
[45] The appellant does not suggest that the trial judge’s reasons on sentence reflect any error in principle. Nonetheless, he submits that his sentence is “demonstrably unfit.” I am inclined to agree with the appellant’s submission, though the offences of which he was convicted are serious, indeed very serious.
[46] Numerous aggravating factors called for a lengthy penitentiary sentence: the appellant sexually abused, not one, but two young complainants; he repeatedly abused them over an extended period of time; he was in a position of trust toward each complainant; he combined the sexual abuse with threats; and he has shown no remorse for what he did.
[47] In contrast, the appellant can point to but a few mitigating considerations: he had an admittedly difficult upbringing; he has had difficulties controlling his consumption of alcohol; by the time of trial, he had entered a new relationship which seemed to be bringing some stability to his life; and his criminal record is relatively minor, dated and entirely unrelated to these offences.
[48] Although I would impose a harsh sentence, I would depart from the trial judge’s sentence because, in my view, the trial judge erred in effectively equating the conduct of the appellant to the conduct of the accused in R. v. D.(D.) (2002), 163 C.C.C. (3d ) 471 (Ont. C.A.). In D.(D.), this court upheld a global sentence of nine years and one month, a sentence roughly comparable to, though slightly higher than, the sentence imposed on the appellant.
[49] In D.(D.), the accused was convicted of numerous sexual offences against four boys each under eight years of age. The sexual acts included masturbation, group sex, oral sex and attempted and actual anal intercourse. The accused assaulted the boys and threatened to keep them silent. He had a minor, unrelated criminal record. He admitted the offences only after his sentencing hearing was completed. In rejecting the argument that our court’s previous decision in R. v. Stuckless (1998), 1998 7143 (ON CA), 127 C.C.C. (3d) 225 (Ont. C.A.) established a high end of the range at six years, Moldaver J.A. wrote (at 481):
…Stuckless does not stand for the proposition that six years represents the high end of the appropriate range of sentences for like offenders convicted of like offences. On the contrary, it indicates to me that in similar circumstances, mid to upper single digit penitentiary terms will, as a general rule, represent the appropriate sentencing range.
Cases like the present one however, which involve repeated acts of anal intercourse and attempted anal intercourse, as well as the use of other physical violence, threats of physical violence and extortion, are in a different category. Such cases, in my view, call for a higher range of penalty because of the enhanced gravity and the seriousness of the crimes and the greater degree of moral culpability attributable to the offender. As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances. Thus the global sentence of nine years selected by the trial judge in this case was, in my view, within the appropriate range.
[50] Although the appellant’s crimes were appalling, his conduct can be distinguished from the accused’s conduct in D. (D.) on a number of grounds. First, although the appellant threatened to harm the complainants if they told anyone about the abuse, the sexual abuse was not combined with other acts of physical violence. By contrast, in D.(D.), one complainant recalled that the accused would “smack” and “punch” him whenever he tried to stop the accused from penetrating him anally. Another boy reported that the accused held him over the balcony of his thirtieth-story apartment building and warned him that he would be thrown off if he ever reported the abuse.
[51] Second, in this case the appellant’s sexual acts include touching, masturbation and oral sex. However, in his reasons on sentence, the trial judge found no vaginal or anal penetration had occurred. Indeed, the jury acquitted the appellant on the one count of anal penetration. By contrast, in D.(D.) the accused engaged in numerous acts of attempted and actual intercourse.
[52] As this court observed in Stuckless, in a passage relied on by the trial judge, the absence of penetration does not relegate the sexual abuse of children to the lower range of sexual offences. Absence of intercourse cannot be characterized as mitigating. However, where intercourse does occur, as it did in D.(D.), it is characterized as aggravating. It is so characterized because it likely results in additional physical and psychological trauma, and because it heightens the risks of disease and, where girls are victims, pregnancy.
[53] Third, in this case, there is no evidence that the appellant “groomed” the complainants in order to gain their trust and affection. By contrast, in D.(D.) the accused bought his victims expensive gifts, took them on camping trips and other adventures, and occasionally also gave them beer and cigarettes. He also exposed them to pornography.
[54] Finally, in this case, the offences involved two complainants and spanned a period of three years. By contrast, in D.(D.) the accused assaulted four complainants for periods of time ranging from two to seven years.
[55] These distinguishing considerations call for a materially lower sentence than the sentence imposed in D.(D.). In my opinion the appropriate sentence is six and a half years in addition to the appellant’s pre-sentence custody.
E. CONCLUSION
[56] I would dismiss the appellant’s conviction appeal. In my view, the jury’s verdict was not unreasonable, and the admission of the medical evidence did not deprive the appellant of a fair trial.
[57] I would grant leave to appeal sentence, allow the sentence appeal, and impose a sentence of six and a half years in the penitentiary.
Released: July 04, 2005
JIL
Signed: “J.I. Laskin J.A.”
“I agree: R.A. Blair J.A.”
“I agree S.E. Lang J.A.”
[^1]: The trial judge did not give the usual two-for-one credit because after having been released following conviction and pending sentence, the appellant did not appear for his sentencing hearing.