DATE: 20050830
DOCKET: C41381
COURT OF APPEAL FOR ONTARIO
SHARPE, BLAIR and MacFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Kenneth L. Campbell for the respondent
Respondent
- and -
W… B…
W… B… in person and Robert F. Goddard assisting the appellant
Appellant
Heard: June 21, 2005
On appeal from the convictions entered by Justice John F. Hamilton of the Superior Court of Justice sitting with a jury, on November 17, 2003, and from the sentence imposed by Justice Hamilton on January 6, 2004.
SHARPE J.A.:
[1] The appellant was convicted by Hamilton J., sitting with a jury, of one count of choking with intent to commit an indictable offence, one count of assault causing bodily harm, one count of uttering a death threat, two counts of forcible confinement, and three counts of sexual assault. He was sentenced to forty-two months imprisonment, having been credited with forty-two months pre-trial custody, for a global sentence equivalent to seven years. He appeals the convictions and seeks leave to appeal his sentence. For the reasons that follow, I would dismiss the appeal.
[2] All eight charges relate to one complainant, a woman who lived with the appellant at the time of the alleged offences. She went to the police on April 12, 2002 and alleged that the appellant had choked and threatened her with death earlier that day. Although given the opportunity, she made no other allegations during the interview. The investigating officer gave her his card with his number, but, although she did call him, she did not make any further complaints during those calls.
[3] About one month later, in May, a friend helped her prepare a written statement in which she alleged that the appellant had sexually assaulted her in March 2002. This prompted the police to interview the complainant again on May 19, 2002. In that second interview, the complainant alleged a total of three sexual assaults, which she said occurred in February, March, and April of 2002.
[4] The appellant raises three grounds of appeal: (1) that the trial judge misdirected the jury on the relevance of the delayed and incremental allegations by the complainant; (2) that the trial judge erred by instructing the jury regarding the significance of the fact that the complainant’s daughter was not called to testify; and (3) that the trial judge gave inadequate reasons for his rejection of the appellant’s Corbett application. The appellant also seeks leave to appeal his sentence on the ground that, if he succeeds on one or more grounds of his conviction appeal, he would stand convicted of fewer counts and therefore a smaller sentence is appropriate.
1. Jury instruction relating to the complainant’s delayed and incremental allegations.
[5] This ground of appeal relates to the three convictions for sexual assault and a related conviction for forcible confinement, as well as any of the other charges that may have been added to the indictment following the complainant’s second interview on May 19, 2002. The appellant submits that the trial judge erred by instructing the jury that it could not draw an adverse inference against the credibility of the complainant because of her delay in making the allegations of sexual assault.
[6] To appreciate this ground of appeal, it is necessary to consider the reason the complainant offered for not reporting the sexual assaults earlier. When asked in chief why she did not report them before the choking incident, she testified that she was “afraid” and “terrified”. She feared “that the things that [the appellant] had done weren’t enough”; that the police would not hold the appellant in custody; and that the appellant would be angry and return to harm or kill her.
[7] When asked why she did not report them during her first interview with the police on April 12, 2002, the complainant offered the following explanation:
I’m not too sure why. I mean so much had gone on that day I think I was overwhelmed. I wasn’t myself. Uhm, I think the only thing that was sticking in my head at that point is what just happened.
[8] On cross-examination, she testified as follows:
Q. You admit to me that … you didn’t go to the police [before April 12, 2002] because you didn’t have any physical injuries?
A. Correct.
Q. You didn’t go to the police because you didn’t think you had enough?
A. That’s correct.
Q. All right. But certainly on April 12th when you went to the police, you had enough then?
A. He told me all along prior to that, that I could go. I could get a little piece of paper and that was not going to stop him from doing what he wanted to do. He described to me what he would do to me if I did. What was I supposed to do? I have two little girls at home. I have to make sure that I’m okay and so are they.
Q. Ma’am, I’m talking about [when] you went to the police on April 12th?
A. That is correct, but I also explained to you I was not myself. Everything I had been through that morning, do you think I was honestly thinking clearly?
[9] In his closing address to the jury, defence counsel argued that the failure to disclose the sexual assaults earlier raised a reasonable doubt as to the veracity of those complaints:
Whether his actions amounted to self defence with respect to a single grab of the neck, should that be your finding of fact, after she struck him, or whether things progressed beyond that and things amounted to a choking or an assault and forcible confinement, as she suggests on April 12th, regardless, I submit that the failure of her to disclose the sexual assaults on the morning of the 12th, and the continued non-disclosure for over a month thereafter, should lead you to the conclusion that the evidence of the complainant in the context of all of the evidence you have heard, raises a reasonable doubt as to the accused’s committing any of the sexual assaults or the forcible confinement that’s associated with that sexual assault.
[10] Crown counsel made a detailed response to this submission in which he argued that “[j]ust because a person doesn’t report abuse that occurs in a relationship until weeks, months or even years after it occurred, doesn’t mean it didn’t happen.” Crown counsel reviewed at some length the danger of stereotypes with respect to sexual offences and domestic violence that “have no place in a court of law”. He pointed out that there were a number of reasons for failure to report immediately: “Humiliation, depression, embarrassment, fear, self-questioning, self-blaming, shock, denial.”
[11] The trial judge dealt with this issue at two points in his charge to the jury:
The timing of the complaint is simply one factor to consider in assessing [the complainant’s] credibility. Delay in disclosure must not be used to support an adverse inference against the victim’s credibility. As a matter of law, it cannot be said that a complainant who is wronged will always complain at the first opportunity. I will get into this later, but you heard [the complainant] say: When I went in there the first day, I’m not thinking about sexual assault. I’m thinking that I was choked. That was on my mind. I went to the doctor the next day.
The issue here, in the defence position, is that [the complainant] is not reliable and she is not trustworthy in order to register a conviction beyond a reasonable doubt, and that she had ample opportunity to complain about the sexual assaults, but didn’t. You might think one would say right away to the police, but that’s stereotyping, as I told you. You cannot draw an adverse inference because she made a complaint 40 days later or 30 days later, if you so believe her to be credible. Do not draw an adverse inference because of the way she gave an explanation. She said: I wasn’t thinking about sexual assault the day I went in. I was choked [emphasis added].
[12] The trial judge no doubt had in mind the statement made by Major J. in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 63 and 65:
The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant [emphasis added].
[13] I agree with the appellant that in the italicized sentences from the extracts of the jury charge quoted above, it would have been preferable had the trial judge instructed the jury, “Delay in disclosure standing alone must not be used to support an adverse inference against the victim’s credibility,” and, “You cannot draw an adverse inference only because she made a complaint 40 days later or 30 days later, if you so believe her to be credible.” However, when this charge is read as whole, in the light of the complainant’s evidence and counsels’ closing submissions, I am not persuaded that the omission of these words constitutes an error of such gravity as to have denied the appellant a fair trial.
[14] I reject the appellant’s submission that the rationale for excluding delay as a consideration when assessing a complainant’s credibility – namely, the invalid stereotype that a credible victim would never delay reporting sexual abuse – was not at play in this case. As I read her evidence, the complainant explained her failure to complain earlier about the sexual assaults as the product of fear and her lack of confidence in the capacity of the authorities to protect her. Her confusion on April 12, 2002 was, on her evidence, a product of the appellant’s attack. It would be wrong to discount her explanation based on an invalid stereotype.
[15] The fact that the complainant went to the police on April 12, 2002, yet made no complaint of sexual assault that day was certainly a factor for the jury to consider. However, it remains the case that the explanation the complainant offered was that the delay was the product of what Major J. in R. v. D.D. described as “embarrassment, fear, guilt, or a lack of understanding and knowledge.”
[16] In my view, this case does not fall into the same category as R. v. Crampton, [2004] O.J. No. 3161 (C.A.). In that case, the trial judge told the jury that they could not take into account delay in disclosure and then failed to make any reference to the defence theory of fabrication, which was based on the fact that the complainant had only disclosed her allegations after her boyfriend had learned that she had been with the accused on two consecutive evenings. In the case at bar, the trial judge presented the defence theory to the jury.
[17] At the end of the day, I am satisfied that the jury would have understood that they were entitled to consider the factor of delay in assessing the complainant’s credibility, but that they were to do so with caution and avoid falling into the trap of stereotypical thinking. Accordingly, despite the shortcomings I have noted in the trial judge’s instructions on this point, I would not give effect to this ground of appeal.
2. Jury instruction relating to the failure to call witnesses.
[18] The complainant testified that her eight-year-old daughter was present during several of the incidents. The complainant also testified that on one or two occasions, she had called 911. A police officer testified that no record could be found of the 911 calls. In his closing address to the jury, defence counsel pointed out that the Crown had failed to call the complainant’s daughter to support her mother’s story: “We have not heard from [the witness] who was the eight-year-old daughter at the time. There are plenty of witnesses that testify in court at age eight.” Counsel also pointed out that there was no evidence to support the claim that a 911 call had been made.
[19] The trial judge interpreted defence counsel’s submissions as inviting the jury to draw an adverse inference from the failure of the Crown to call the complainant’s daughter and to speculate on what her evidence might have been. The trial commented on this aspect of the case at two points in his charge to the jury:
Regarding the failure to call important witnesses, the defence indicated to you, well, where is the daughter? How come she’s not here? He has asked you, the jury, to draw an adverse inference from the failure of the Crown to call independent witnesses. He suggested that the 7 year-old daughter should have been called. One witness called by the Crown, in this case [the complainant] can establish the essential elements of the offence, and if the defence thought that the testimony of other witnesses may cast doubt on the credibility of the complainant, the defence could have called the witness as part of the defence case. There is sufficient evidence here in this case, if you so find, to prove the case on the evidence of [the complainant] alone if you believe her beyond a reasonable doubt. The Crown’s obligation is to call enough witnesses to adequately prove the essential elements of the offence. Do not speculate on the absence of the witnesses, but decide the case solely on the evidence before you. There is sufficient evidence here, if you chose to convict, if you believe [the complainant] beyond a reasonable doubt. You may not find her reliable, but don’t draw an adverse inference because the 7-year-old daughter was not called.
[20] Later on, the trial judge made a similar comment, adding, “I don’t know so much about an 8-year-old in circumstances like these, that I would even let her testify, but that’s not before you.”
[21] The appellant submits that the trial judge erred in three ways: (1) he wrongly suggested that the defence was not entitled to comment on the Crown’s failure to call the complainant’s daughter; (2) by suggesting the defence could have called her, he improperly relieved the Crown of its onus; and (3) by suggesting that the child might not have been allowed to testify, he further relieved the Crown of its onus.
[22] The manner in which the trial judge dealt with this issue was not ideal. It would have been preferable had he avoided anything that could be taken as suggesting that it was incumbent upon the defence to call evidence to support the defence. However, it was open to the trial judge to conclude that the defence was inviting the jury to speculate on what evidence the daughter might give or to draw an adverse inference from the Crown’s failure to call her and to instruct the jury accordingly. Moreover, these impugned extracts from the charge must also be read in light of the rest of the charge where the trial judge made it abundantly clear that onus rested with the Crown and that the appellant had the benefit of the presumption of innocence and was not required to prove anything.
[23] In assessing the shortcomings of the trial judge’s instructions, I must also consider the practical realities of the case. In the end, it seems to me highly improbable that the jury would make anything, one way or the other, of the failure of either the Crown or the appellant to call the complainant’s eight-year-old daughter. It was apparent that the Crown’s case rested on the complainant’s evidence alone. While the trial judge was wrong to say anything to suggest that there might be any onus on the appellant to call her, the jury would surely not expect, as a practical matter, that a man accused of choking and sexually assaulting her mother would risk calling this young child as a witness.
[24] Accordingly, in the circumstances of this case, I am not persuaded that any error made by the trial judge resulted in a denial of the appellant’s fair trial rights. If necessary, I would apply s. 686(1)(b)(iii) and dismiss the appeal on the basis that no substantial wrong or miscarriage of justice has occurred.
3. Corbett ruling
[25] The appellant has a serious criminal record that includes some twenty-two convictions, numerous offences of dishonesty (theft, fraud, false pretences, extortion), disobedience of court orders, assault with a weapon, uttering threats, and prostitution related offences. He brought an application pursuant to R. v. Corbett, [1988] 1 S.C.R. 670, seeking to preclude the use of his criminal record on his cross-examination. In very brief and conclusory reasons, the trial judge dismissed the application. The appellant did not testify. While it would have been preferable had the trial judge offered a fuller explanation for his ruling, I am not persuaded that his failure to do so is fatal here. I agree with the respondent that, given the serious nature of the appellant’s record and the long list of offences of dishonesty, this was a weak Corbett application, doomed to almost certain failure.
[26] Accordingly, I reject this ground of appeal.
4. Sentence Appeal
[27] The appellant’s sentence appeal was advanced in the event that I allowed the conviction appeal on some but not all of the counts. As I would dismiss the conviction appeal in its entirety, it follows that I would deny leave to appeal sentence.
“Robert J. Sharpe J.A.”
“I agree R.A. Blair J.A.”
“I agree J.L. MacFarland J.A.”