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. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) 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

(c) 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,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.

DATE: 20051012

DOCKET: C40980

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. BRIAN SMITH (Appellant)

BEFORE:

WEILER, BLAIR and LAFORME JJ.A.

COUNSEL:

Anthony Moustacalis

for the appellant

Roger Shallow and

Amanda Rubaszek

for the respondent

HEARD & RELEASED ORALLY:

September 8, 2005

On appeal from the conviction entered by Justice Gloria R. Klowak of the Superior Court of Justice on October 2, 2003.

E N D O R S E M E N T

Nature of Appeal

[1] The appellant appeals from his conviction and the custodial portion of his sentence of four months for sexual assault and invitation to sexual touching in relation to two complainants between the ages of 14 and 18.

[2] With respect to conviction, the appellant raises four issues concerning the trial judge’s charge to the jury. A fifth issue relating to the charge which was raised in the appellant’s factum, namely, whether the trial judge failed to charge the jury properly on how to assess the evidence when dealing with multiple counts, was properly abandoned at the outset of oral argument. The trial judge made it clear to the jury that it was to consider the evidence on each count separately and that the real issue before it was whether the appellant had committed the acts alleged and whether he was in a position of authority. In her charge, the trial judge warned against using evidence in support of one of the courts to infer that the appellant was guilty of one of the other counts. The trial judge cautioned the jury against the use of propensity reasoning to find guilt.

[3] With respect to sentence the appellant relies on fresh evidence as to his change of circumstances since sentence. He argues as well that the trial judge in imposing a four‑month custodial sentence, by misconstruing the evidence and by failing to impose a conditional sentence or an intermittent sentence in order to preserve his employment status. He asks us in the alternative to recommend immediate temporary access.

[4] At the conclusion of oral argument we dismissed the appeal with respect to both conviction and sentence and indicated that reasons would follow shortly. These are those reasons. In order to appreciate these reasons some brief background is necessary.

Evidentiary background

[5] The appellant was charged with two counts of sexual assault, one count of sexual touching of a young person, and two counts of inviting a young person to touch him for sexual purposes between May 1997 and December 2001. All of the complainants were babysitters at the appellant’s house. P H testified that she was fourteen in May 1996, and babysat for the Smiths when she was 14 and 15. She babysat frequently for the Smiths’ children. Mr. Smith would often address her as “sexy” or “hot stuff”. He kissed her on the lips on one occasion in May 1997. After the incident in 1997, P.H. stopped babysitting for a number of years. P.H. stated that she told her friend and her mother the night the kiss happened. She told her sisters after a period of time. She did not go to the police when she was 14 or 15 because she was afraid to. She went back to the Smith house as a live-in nanny in the fall/winter of 2001. It was suggested that P.H. was asked to leave because she was not fulfilling her obligations as a nanny. P.H. claimed that the Smiths had found someone else to take over because she was pregnant, and she could not clean the house because of her condition due to the pregnancy. P.H.’s sister apparently also babysat for the Smiths after she had been told about the incident.

[6] P.H. knew K.R., another complainant. P.H. said that she discussed the incident with K.R. when P.H. was 14 or 15, but had not discussed it since then. K.R. testified that she was about fifteen or sixteen between May and August 2000. She testified that Smith had rubbed her back, shoulders, stomach and hips while she was babysitting, and told her how sexy she was. He did this on multiple occasions. Mr. Smith also told her that he would pay her if she gave him a kiss when he was driving her home. She said she would not do it, but he gave her extra money anyways. On another occasion, Smith offered her a hundred dollars for a kiss. She said no and the second incident lead K.R. to quit her job. K.R. also testified she saw Smith standing naked in front of a window in the house while she was in the backyard with the children, and that he then pulled down the blinds. K.R. said she did not tell her parents that she was babysitting for the Smiths and never told them about Mr. Smith’s behaviour, but did tell P.H. There was some issues on cross-examinations in regards to prior inconsistent statements about whether she saw the blinds fall when Mr. Smith was standing at the window, about the amount of money Smith offered her for kisses, and about whether KR had told her parents about babysitting for the Smiths.

[7] P.H. and K.R. also knew C.D., a third complainant. The appellant’s charge concerning this complainant was dismissed. P.H. said she did not speak to C.D. about her incident involving Smith. C.D.’s evidence related to a suggestive email allegedly sent to her by Smith.

[8] The appellant did not testify. The appellant’s wife did testify and contradicted K.R.’s evidence that her parents did not know she was babysitting for the Smiths. Ms. Smith said that she fired P.H. because she was not adequately taking care of the children, and that cleaning the house was not part of P.H.’s job. As well, Ms. Smith also contradicted other testimony by K.R. concerning K.R.’s other babysitting jobs. Finally, Ms. Smith contradicted P.H.’s evidence that she had blinds in the windows in question.

[9] The appellant was convicted of all counts except the one count of inviting sexual touching in relation to C.D.

Issues

1. Did the trial judge err in ruling that collaboration could not be put to the jury because the defence did not cross-examine the witnesses on this issue?

[10] In his address to the jury the appellant’s counsel told them that they should consider “ the ability or the opportunity to collaborate one witness with another”. The Crown objected to defence counsel’s address on the basis that collaboration or collusion had not been put to any of the witnesses in cross-examination.

[11] In her charge to the jury, the trial judge told the jury that the appellant’s counsel had not cross-examined the complainants on the issue of collusion or collaboration and instructed the jury that “although there is evidence that the three of them, in some fashion, were acquainted, there is no evidence before you that they, in any way, collaborated with each other to concoct their stories and I have already instructed you that there is no evidence, where there is no evidence on a matter you are not to speculate or guess”.

[12] The appellant submits that the charge was erroneous because the opportunity to collaborate or collude existed and could have been taken into account by the jury in assessing the credibility of the complainants. The appellant further submits that the trial judge was also wrong to tell the jury that he should have cross-examined on the issue. He submits that he was not obligated out of fairness to cross-examine on the issue.

[13] In our opinion the trial judge did not err. This is not a case where the evidence of the witnesses was put forward as similar fact evidence. There was no evidence that they changed or modified their evidence to make their testimony similar. The evidence was that other than a very specific discussion between P.H. and K.R., they had little contact with each other and did not discuss their allegations or evidence with each other. The conversation between P.H. and K.R. took place years before the allegations were made known to the public.

[14] There was no evidence contradicting the evidence of the complainants. Unlike in some cases, the appellant did not testify that the charges against him were concocted. Cross-examination was necessary not only to be fair to the witnesses by giving them an opportunity to deal with the allegations of collusion or corroboration but to lay an evidentiary foundation capable of giving an air of reality to the defences.

[15] In the circumstances, the trial judge was correct in instructing the jury not to assess the credibility of the complainants on the basis of collaboration or collusion.

[16] That said, it would have been appropriate for the trial judge to tell the jury that they should consider the fact of the discussion between two of the complainants and the opportunities they had to discuss their evidence as a consideration they should weigh in assessing the complainants’ evidence. Had the trial judge done so, however, it would also have been appropriate for her to instruct the jury that the lack of cross examination on their evidence should also be taken into account by them in assessing the weight to be given to the witness’s evidence. See R. v. Paris (2000), 2000 17031 (ON CA), 150 C.C.C. (3d) 162 at paras 22 -28.

[17] This ground of appeal is dismissed.

2. Did the trial judge err in failing to relate the evidence to the issues and failing properly to relate the theory of the defence to the jury?

[18] The appellant submits that the trial judge, in reviewing the theory of the defence, simply stated that the Crown had not proven the charges, adding that the defence alleged that the evidence of the complainants should not be accepted, and that the appellant was not acting in position of trust and authority. The appellant further submits that the trial judge did not relate the evidence to the charges and explain the defence position on the evidence and the charges in a number of areas.

[19] In the precharge conference, the trial judge asked each counsel to give her his respective theory of the case in writing without referring to the evidence. She also told counsel that she did not want them to usurp her function by giving a boilerplate address and, “…and leave going over particulars of all the evidence up to me.” Thus, she made it clear to counsel that she expected them to tell the jury what evidence each relied on in support of his position.

[20] In her charge to the jury the trial judge reviewed the elements of the offences charged and the evidence in support of the elements. Towards the end of her charge she read to the jury the positions of the Crown and defence as they had given it to her.

[21] The trial judge appropriately put defence counsel’s theory to the jury. Defence made no objection at the end of the charge with respect to how the theory of the defence had been put to the jury. The trial judge provided a lengthy and thorough instruction on the elements of each offence in each count and a summary of the evidence in relation to those charges. While the appellant complains that the charge was not balanced with respect to the evidence of K.R., the trial judge told the jury about the inconsistency in K.R.’s evidence concerning how much the appellant offered her for a kiss and the conflict in the evidence as to whether K.R.’s parents knew she was working for the Smith’s and indicated there may have been other contradictions in her evidence they should take into account. It is not the function of the trial judge to restate the entire argument made by defence counsel. The charge read as a whole adequately put the defence to the jury and the evidence in support of it.

3. Did the trial judge err in not properly explaining the use of prior inconsistent statements?

[22] This ground of appeal is related to the previous ground of appeal. The instructions given by the trial judge made it clear that any inconsistencies in the witnesses’ testimony could affect the credibility of the witness. The trial judge noted in her instructions that the jury should consider the fact, nature and extent of any differences in testimony in deciding whether to rely on that testimony. The trial judge gave an example of a prior inconsistent statement – K.R.’s statement to the police that the appellant had offered her $20 for a kiss, while she indicated in her testimony the amount was $100. The instructions, when read in the context of the charge to the jury as a whole, make it clear that inconsistencies between a witness’s present evidence and past statements were relevant to that witness’s credibility.

[23] The appeal as to conviction is dismissed.

4. Did the trial judge err in imposing a sentence of four months in custody by misconstruing the evidence and failing to impose a sentence that would have preserved the appellant’s employment?

[24] The appellant submits that the trial judge unfairly rejected the opinion of a psychologist who testified that the appellant was at a low risk to reoffend in part because the psychologist placed emphasis on alcohol as a factor even though there was no evidence of alcohol in the case. The appellant further submits that the trial judge improperly ignored the extensive testing done on the appellant, gave diminished weight to it and also relied on an erroneous characterization of the nature of the appellant’s corrupting morals conviction for which he had been given a conditional sentence. As well, the trial judge did not grant the request for a temporary absence, even though defence counsel reminded the court that that the appellant was employed. The appellant seeks a conditional sentence or in the alternative an intermittent sentence or a recommendation for immediate temporary absence.

[25] The trial judge did not misapprehend the evidence of the psychologist’s report or rely on improper factors in relation to the appellant’s prior conviction for corrupting morals. The trial judge considered the appellant’s criminal record, the pre-sentence report, the psychologist’s report, the victim impact statement, the aggravating and mitigating factors, and the principles and purposes of sentencing. She correctly found that in the circumstances a conditional sentence would be inappropriate. A strong denunciatory sentence was required because the appellant was in a position of trust and used children for his sexual purpose. Having regard to the breach of trust involved, the appellant’s criminal record and the range of sentences for similar offences, the trial judge concluded that an intermittent sentence was not proper. We see no error in principle and the sentence was within the appropriate range.

[26] While leave to appeal sentence is granted, the appeal as to sentence is dismissed.

“Karen M. Weiler J.A.”

“R. A. Blair J.A.”

“H. S. LaForme J.A.”