Her Majesty the Queen v. T.C. [Indexed as: R. v. C. (T.)]

74 O.R. (3d) 100

[2005] O.J. No. 24

Docket: C39114

Court of Appeal for Ontario,

Laskin, Feldman and Blair JJ.A.

January 11, 2005

Criminal law -- Evidence -- Similar fact evidence -- Accused charged with sexual offences against seven boys in late 1970s and early 1980s -- Six complainants were speech therapy patients of accused and seventh complainant was his step-nephew -- Trial judge not erring in allowing testimony of each patient complainant to be used as similar fact evidence in respect of other patient complainants.

Criminal law -- Sentence -- Sexual offences -- Fifty-seven- year-old accused convicted of sexual offences against seven boys in late 1970s and early 1980s -- Six complainants were speech therapy patients of accused and seventh complainant was his step-nephew -- Normal sentence range for sexual offences involving adults in position of trust who groom children for sexual abuse over substantial period of time being in mid to upper single digits -- Sentence of six years' imprisonment affirmed on appeal.

Criminal law -- Reasons for judgment -- Accused's credibility -- Accused charged with sexual offences involving six prior speech therapy patients and his step-nephew -- Offences allegedly taking place in late 1970s and early 1980s -- Some complainants were accused's patients for more than two years -- One complainant was a paraplegic who attended therapy for four years and whose mother made allegations of sexual assault at the time she ended her son's therapy -- Accused denying recollection of any of complainants even after they testified -- Accused alleging that trial judge applying more stringent standard to assessment of accused's credibility than to complainants' credibility -- Trial judge did not apply different standards -- Trier of fact entitled to draw inference that was incredible that accused did not recall complainants, particularly the paraplegic -- Jurisprudence accepting that children may have difficulty recalling details of events that happened years before and trial jud ge not erring in concluding complainants' difficulty recalling dates, frequency of events and details not fatal to their credibility -- Appeal from conviction dismissed. [page101]

Criminal law -- Reasons for judgment -- Accused convicted of sexual assaults -- Accused arguing that trial judge failed to distinguish between reliability and credibility of complainants -- Trial judge gave detailed reasons for conclusions regarding reliability and credibility of each witness -- No duty to refer to each potential problem or weakness pertaining to complainants -- Reasons sufficient to demonstrate that all frailties of complainants' memories were understood and weighed -- Appeal from conviction dismissed.

The accused was charged with sexual offences against seven boys, six of whom were speech therapy patients of his at one hospital in the late 1970s and early 1980s. The seventh boy was the accused's step-nephew. The six speech therapy patients claimed that the accused engaged them in acts of oral sex, fondling and masturbation during therapy sessions. The accused's step-nephew alleged that the accused touched his penis, masturbated him and performed oral sex on him when he went to the accused's basement to work out with weights. The accused testified that he had no recollection of any of the six complainants who had been his patients, even after seeing them testify. He used the hospital patient treatment records that he made when treating the complainants for the purpose of his testimony about them. The trial judge allowed the evidence of each of the patient complainants to be used as similar fact evidence to support the credibility of the other patient complainants, but ruled that the similar fact evidence was not applicable to the charges in respect of the accused's step- nephew. The trial judge found that there was evidence upon which the trier of fact could conclude that the similar acts were the acts of the accused, that the proposed evidence was material and relevant, and that the conduct was discreditable. In addressing the question whether the probative value of the evidence outweighed its prejudicial effect, the trial judge found that the proposed evidence was strong, essentially because it was reliable, and that the similarities in the proposed evidence were fairly extensive. He found little moral prejudice to the accused because the extent to which the proposed evidence might support an inference of guilt based on bad character was limited, as many of the similarities related to surrounding circumstances rather than the sexual conduct itself. He also found that without a jury, there was little likelihood that the similar fact evidence would confuse the issues. He concluded that the probative value of t he similar fact evidence outweighed its prejudicial effect and was therefore admissible to prove the counts related to each patient complainant. The accused was convicted and was sentenced to six years' imprisonment. He appealed the convictions and the sentence.

Held, the appeal should be dismissed.

The trial judge did not err by applying an inconsistent standard of scrutiny to the evidence of the complainants and the evidence of the accused, excusing the complainants' inconsistencies because of the passage of time while attributing the accused's lack of memory to dishonesty. The trial judge assessed the accused's claim that he had no memory of any of the patient complainants in light of several factors, including the fact that one of the patient complainants was a paraplegic confined to a wheelchair who had received speech therapy from the accused for four years and whose mother registered a complaint against the accused for sexual misconduct involving her son. The trial judge found it incredible that the accused would not remember this patient. He was entitled to view the accused's evidence the way he did and to draw the inference that the accused was not telling the truth. In contrast, it is accepted that children can have difficulty recounting details of an event and that adults will have difficult y remembering details of events that happened years ago. The trial judge was entitled to view dates and times and frequency of occurrences as minor details that one would not expect the [page102] complainants to remember accurately, as opposed to the accused not remembering patients whom he had treated, in some cases, for years.

The trial judge did not fail to distinguish between the reliability of the complainants' testimony and the complainants' honesty. There is no need for the reasons for judgment to recite each problem or frailty in a witness' evidence. The reasons reflect an understanding of the weaknesses in the memories of some of the complainants. The trial judge looked for confirmation of their evidence to test its reliability and credibility and also relied upon the similar fact evidence to support their reliability. He was entitled to conclude that the complainants were reliable on the essential facts.

The trial judge's ruling on the admissibility of the similar fact evidence was delivered without the benefit of the Supreme Court of Canada's decision in R. v. Handy. He erred by identifying the issue to which the similar fact evidence was directed as the credibility of the complainants. The problem with saying that evidence goes to the credibility of the complainant is that anything that denigrates an accused will enhance the credibility of the complainant, and therefore it states the issue too broadly. However, in this case the error was essentially one of nomenclature rather than substance. The issue in the case was not the identity of the accused. Rather, the issue was whether the sexual incidents occurred during the speech therapy sessions as alleged. The similar fact evidence went to the issue of whether the actus reus of the offence occurred in each case, which turned on the credibility and reliability of the evidence of the complainants on that issue, as opposed to their general honesty. Therefore, although the matter in issue was the actus reus of the offences, the trial judge did not err by referring to the matter as the credibility of the complainants, particularly when he did not yet have the Handy decision. The trial judge recognized that there was a potential for tainting of the evidence in this case as only one complainant came forward independently to the police, and the others came forward either after they heard about charges against the accused or after being contacted by the police because they were former speech therapy patients of the accused. The trial judge did not err in concluding that there was no air of reality to the potential for tainting and that there was no collusion among the complainants. The trial judge did not err in his decision to admit the evidence of the patient complainants as similar fact evidence and not to admit the evidence of the step-nephew for that purpose.

For sexual offences involving adults in a position of trust who groom children for sexual abuse over a substantial period of time, the normal sentencing range is in the mid to upper single digits. The 57-year-old accused had no criminal record and was unlikely to re-offend. However, the offences were very serious and the accused abused his position of trust both as a speech therapist and as a step-uncle. The sentence was well within the appropriate range.

APPEAL from a conviction by Panet J. of the Superior Court of Justice dated July 19, 2002 for sexual offences and from a sentence imposed on November 12, 2002.

R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 163 C.C.C. (3d) 471 (C.A.); R. v. Handy, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 213 D.L.R. (4th) 385, 290 N.R. 1, 164 C.C.C. (3d) 481, 2002 SCC 56, 1 C.R. (6th) 203 (sub nom. R. v. H. (J.)), apld. Other cases referred to R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58, 111 N.R. 31, 56 C.C.C. (3d) 200, 77 C.R. (3d) 347; R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, [1997] O.J. No. 3042, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38 (C.A.); R. v. MacLean, 1988 3155 (BC CA), [1988] B.C.J. No. 2042, 31 B.C.L.R. (2d) 137, 45 C.C.C. (3d) 185, 68 C.R. (3d) 114 (C.A.) (sub nom. MacLean v. British Columbia (Attorney General)); R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295, [1993] O.J. No. 2802, 87 C.C.C. (3d) 153, 26 C.R. (4th) 256 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; [page103] R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 2002 SCC 26. Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 581(3), [as am.], 601(1)

Gary Chayko, for appellant. Nadia Thomas, for respondent.

The judgment of the court was delivered by

[1] FELDMAN J.A.: -- The appellant was convicted of sexual offences against seven young boys, six of whom were his former patients when he worked as a speech therapist in Cornwall, Ontario in the late 1970s and early 1980s; the other was his step-nephew. The trial judge allowed the testimony of each of the six patient complainants to be used as similar fact evidence to support the credibility of the other patient complainants. The appellant appeals his convictions and his sentence of six years.

Background Facts

[2] The appellant was 56 years old at the time of the trial. He received his B.A. in speech therapy in 1969 in New York State. In 1973, he married and came to work in the Cornwall General Hospital as a speech therapist. In 1975, he attended the University of Buffalo to obtain his M.A. in speech pathology, then returned to his job in Cornwall in 1977. The appellant testified that he treated more than 1,600 patients during his tenure as the speech therapist at the hospital, which ended when he resigned in 1987. After that, he worked at various jobs that did not involve speech therapy until 1992, after which time he no longer worked.

[3] The appellant testified that he had no recollection of any of the six complainants who had been his patients. He used the hospital patient treatment records that he made when treating the complainants for the purpose of his testimony about them. He denied all of the allegations of sexual impropriety.

Facts Found by the Trial Judge

The complainant K.S.

[4] The charge with respect to the complainant K.S. was indecent assault between April 29, 1979 and January 4, 1983. K.S. was [page104] born on April 29, 1971. He has cerebral palsy, is a spastic quadriplegic, and is confined to a wheelchair. He stated that he was a speech therapy patient of the appellant from the time he was seven or eight until he was 13 or 14. On a number of occasions (approximately 20) during the sessions, the appellant would take the complainant out of his wheelchair, lay him on the floor, pull down his pants and underwear and play with his penis. K.S. said that he objected but the appellant continued anyway. The appellant would eventually pull up K.S.'s pants, put him back in his chair and continue the speech therapy session. One time the appellant took the complainant to the bathroom in the hospital, took him out of his wheelchair, pulled down his pants, placed him on the toilet, then played with his penis "to make me pee".

[5] On the evening of the bathroom incident, the complainant's mother saw a sore on his penis, and it was at that time that he told his mother that the appellant had rubbed his penis. The next day she met with the administrator of the hospital and complained about the appellant. K.S. did not attend speech therapy with the appellant again.

[6] The trial judge noted that there were some discrepancies and inconsistencies in the complainant's evidence, particularly regarding dates, the number of assaults, and whether he ejaculated or had an erection during the bathroom incident. According to the speech therapy records, K.S. was a speech therapy patient of the appellant for about four years between 1979 and 1981, approximately 20 years before the trial. In those circumstances, the trial judge was satisfied that discrepancies regarding dates and times and number of incidents were not surprising. In weighing the complainant's evidence, the trial judge also considered the similar fact evidence of the other five patient complainants. I will discuss the issue of the similar fact evidence later in these reasons. The trial judge concluded that the similar fact evidence supported the credibility of K.S.

[7] It was in relation to K.S. that the trial judge addressed in detail the credibility of the appellant. He noted that although there were no inconsistencies in the appellant's testimony, he concluded that the appellant's evidence that he had no independent recollection of any of the complainants, and in particular of K.S., was less than credible.

[8] Based on the appellant's testimony and the speech therapy records, the trial judge found that the appellant was employed as a speech therapist at the Cornwall General Hospital from 1973 to 1975 and from 1977 to 1987. The appellant testified that he had no independent recollection of any of the complainants including K.S. He also testified that while preparing for trial, he had been [page105] given his original speech therapy records regarding the complainants but had not read them; he only put them in order at the request of his lawyer. The trial judge found this testimony "somewhat puzzling" since the appellant said he had no independent recollection of these patients and was preparing to face serious charges involving these people. In particular, the trial judge could not accept that the appellant had no recollection of K.S., a wheelchair-bound individual with cerebral palsy, serious speech problems, and whom the appellant treated for four years.

[9] The appellant did remember that he was called to a meeting with the hospital administrator and that the complaint from K.S.'s mother was reported to him. Again, that recollection of a very serious employment situation was inconsistent with the appellant having no recollection of treating K.S. The appellant's credibility on this issue was further impaired in light of a letter he wrote to his sister- in-law, a speech therapist at another hospital, asking her to take over K.S.'s treatment because of "a recent disagreement between the parents of a child and myself". The appellant testified that he could not recall whether the disagreement referred to in the letter was about the sexual allegations or about the amount or frequency of therapy. The trial judge also found that testimony hard to believe. The trial judge concluded that he did not believe the appellant's assertion that he did not remember K.S. or any of the other complainants, and on that basis he rejected the appellant's denial of the sexual incide nts described by K.S. and found that the appellant's evidence did not raise a reasonable doubt.

[10] The trial judge then turned to the third stage of the R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, analysis and concluded that he accepted the evidence of K.S. and that he was satisfied beyond a reasonable doubt, based on the totality of the evidence, that the events described by K.S. occurred within the timeframe in the indictment. There was no issue between counsel that if the evidence of the complainants was accepted, the elements of the particular charges (in the K.S. case, indecent assault) were made out.

The complainant J.L.

[11] There were three charges involving J.L. The first was indecent assault between December 20, 1976 and January 3, 1983; the second was gross indecency between December 20, 1976 and June 30, 1984; and the third was sexual assault between Januaryá4, 1983 and June 30, 1984.

[12] J.L. was born December 20, 1969. He described attending speech therapy in an office in the basement of the Cornwall General Hospital where the appellant was the therapist from age [page106] seven or eight to age 14 or 15. The sexual activity began when he was in grade five (age nine or ten). When he arrived, he would wait in the hall until the appellant let him in. The session would begin with him talking for ten or 15 minutes, then the appellant would tell him the number of mistakes he had made, and give him the choice to either be hit with a ruler or perform a few minutes of oral sex on the appellant, with the number of minutes depending on the number of mistakes made. The complainant said this occurred once per week until he quit therapy in grade seven. The complainant said that the appellant would sit in his chair with his pants down, and that he had to give the appellant oral sex. The appellant would ejaculate into a Kleenex. He told J.L. that what went on in the room stayed in the room. J.L. al so recalled two times when the appellant performed oral sex on him when he was about 12. J.L. testified that for a period of time he had no memories of the incidents, then he had vague memories, and that the memories came back to him in a dream.

[13] Although not specifically referred to by the trial judge, J.L. was the one complainant who came forward on his own to the police. He said that when he was around 20 years old he had gone to confront the appellant in his office, but the appellant was not there. Later, after watching a movie that dealt with child abuse, he told his mother what had happened to him. Sometime later, she told him that the appellant was still practising speech therapy, and that made him decide to come forward to the police in order to protect other children.

[14] The trial judge accepted the evidence of J.L., supported by the patient records of his attendance for speech therapy with the appellant between 1977 and 1984 and by the similar fact evidence, rejected the evidence of the appellant based on his earlier credibility analysis, and found that the charges had been proved beyond a reasonable doubt.

The complainant C.F.

[15] The charges regarding the third patient complainant, C.F., were indecent assault and gross indecency between August 9, 1980 and August 8, 1981.

[16] C.F. was born August 9, 1970. He went to speech therapy at the Cornwall General Hospital when he was around age ten for seven half-hour sessions, then quit. During the third session, he was sitting on the floor reading with the appellant beside him when the appellant unbuttoned his pants, took the complainant's penis in his hands and played with it, then told him not to tell anyone. At the fourth session, the appellant played with the complainant's [page107] penis then pushed hard on the bone under his penis. The complainant told him that it hurt, but the appellant continued for ten or 15 minutes. Then the appellant placed the complainant's hand on the appellant's penis outside the clothing and made him rub it. Finally the appellant placed the complainant's hand on the complainant's own penis. The appellant told C.F. not to tell anyone, which he didn't.

[17] The complainant's mother brought him to the next session and waited outside the door. At that session, while sitting on the floor, the appellant unzipped the complainant's pants and fondled his penis, then he placed the complainant's hands on his penis, first outside his clothing, then directly on the appellant's penis so that the complainant masturbated the appellant while the appellant played with the complainant's penis. The complainant removed his hands and the appellant ejaculated. The appellant told the complainant that everything was alright and not to tell anyone.

[18] The last time the complainant went to a therapy session, he was on his own. When the appellant did not come out to the hall to get him, he left and told his mother he was not going back.

[19] The trial judge noted that the speech therapy records confirmed the complainant's attendance from January 28, 1981 to March 25, 1981 for 12 to 15 sessions when the complainant was ten years old. In assessing the credibility of the complainant, he also noted that there were internal inconsistencies in the complainant's evidence regarding the description of the appellant, regarding ejaculation, and regarding the frequency of pushing on the bone below his penis. The trial judge discounted these discrepancies on the basis of the complainant's age at the time and the fact that the events occurred more than 20 years before. He considered the similar fact evidence as supportive of the complainant's credibility. As with the other charges, the trial judge rejected the appellant's denial and found that the Crown had proved the charges beyond a reasonable doubt.

The complainant D.W.

[20] There were two charges involving the fourth complainant, D.W., gross indecency between September 1, 1982 and July 11, 1984, and sexual assault between January 4, 1983 and July 11, 1984.

[21] D.W. was born September 2, 1969. When he was 13 in grade 8, he stuttered and it was recommended that he go to speech therapy. He saw the appellant for between 18 months and two years, excluding the summers. The sessions began with discussions about self-esteem and moved to issues of physical size and penis size. The appellant had the complainant lower his pants and gave him a ruler to measure his penis. Over a number [page108] of sessions matters progressed from the appellant and the complainant facing each other and both lowering their pants and underwear, to fondling each other first through the pants then with their pants lowered. On one occasion the appellant ejaculated in his pants. On another occasion, while the complainant was sitting in a chair and the appellant was standing, the complainant fondled the appellant, who then ejaculated on his desk. On another occasion, the appellant performed oral sex on the complainant while the complainant stood and the appellant knelt in front of him. On a f urther occasion they performed oral sex on each other while lying on the floor of the office. Each time their pants were lowered but not removed. The appellant told the complainant that what happened in the office stayed in the office. The complainant told no one about the sexual activity because he was ashamed, but said he accepted it because he thought it was part of the therapy to improve his stuttering.

[22] The trial judge relied on the speech therapy records to confirm the complainant's attendance with the appellant during the time period of the charges. The complainant's description of the appellant and of his office was similar to that of the other patients. The trial judge discounted discrepancies including whether the complainant thought the appellant's penis was circumcised (it was) or not, as explained by the age of the complainant and the passage of time. He considered the similar fact evidence as supportive of the complainant's credibility. After rejecting the evidence of the appellant, the trial judge was satisfied of his guilt beyond a reasonable doubt.

The complainant P.S.

[23] The charge involving the fifth speech therapy patient complainant, P.S., is sexual assault between January 4, 1983 and May 31, 1985. P.S. was born on August 8, 1973 and said that he attended speech therapy at the Cornwall General Hospital when he was between eight and 11 years old. The speech therapy records made by the appellant show that P.S. attended speech therapy with him from June 1984 to May 1985 when P.S. was ten and 11 years old. During the sessions, the appellant asked the complainant if he wished to learn more about his body and discussed sexual topics and whether the complainant was sexually active. There was a progression to the point where the appellant offered to show his penis, pulled down his pants, described as dress pants, showed his penis then put it away. Later the appellant raised the issue of oral sex, pulled down the complainant's pants and performed oral sex on him. Finally, while the appellant [page109] was standing and the complainant was sitting in a chair, the appellant pulled down his own pants and put his penis in the complainant's mouth.

[24] P.S. stopped going to speech therapy because he did not like what was happening. Because he was afraid and embarrassed to tell his parents, he would hide under a bridge close to the hospital for an hour, then go home.

[25] The trial judge noted that the only discrepancies in the complainant's evidence were that he thought he was between eight and 11, not ten and 11, when the alleged incidents occurred, and that at the preliminary hearing the complainant could only remember the first name of the appellant and not the last. The trial judge concluded that these discrepancies did not affect the complainant's credibility. He also used the similar fact evidence as supportive of the complainant's credibility. He again rejected the appellant's denial and found that the charge was proved beyond a reasonable doubt.

The complainant G.H.

[26] The final charges involving a speech therapy patient were in respect of G.H. The charges were gross indecency and indecent assault on G.H. between his birth and when he became an adult. The defence had moved to quash these charges for vagueness in respect of time, but the trial judge ruled that in the circumstances, the indictment was sufficient.

[27] G.H. was born on July 2, 1969. He attended from kindergarten to grade three at St. Anne's School, then moved to St. Columban's for grades four to six. He remembered attending speech therapy at Cornwall General Hospital while he was at St. Anne's and before he transferred to St. Columban's. He recalled that the therapy took place in a building beside the hospital. This was consistent with the evidence of the appellant's sister-in-law, who volunteered in the department beginning in the summer of 1977 for two years. G.H. recalled both the appellant, whom he described, and the female assistant, including her first name.

[28] As to the allegations of sexual contact, the complainant said that sometimes during the therapy sessions the appellant would fondle him either through his clothing or on his bare skin. His pants would be at his ankles or off. He also recalled manual stimulation and oral sex by the appellant while the complainant was either standing at the table or on a chair. He said that sometimes while the appellant had the complainant's penis in his mouth he would have his own pants down and would be playing with himself. He recalled the appellant ejaculating into a handkerchief. He recalled an occasion where he stroked the appellant's penis, [page110] another when the appellant made him watch him masturbate and ejaculate into a hanky and then lick the appellant's penis. He also recalled an incident where there was a young girl present and the appellant had his head between her legs while he fondled the complainant. The appellant told G.H. not to tell anyone.

[29] The trial judge found that the speech therapy records confirmed the complainant's recollection of the time when he attended speech therapy, between June 1974 when he was five years old and March 1978 when he was eight years old, which was before grade four. The trial judge noted that the complainant said that he blocked the memory of these incidents for years, but that the memories came back when he was contacted by the police. He had difficulty remembering the appellant's name, and in one memory flash thought it was "Reynolds". He identified the appellant in court. The trial judge also noted minor discrepancies in the complainant's evidence regarding whether the office door locked and whether a box of toys was located in front of the door. Nor did the complainant recall if the appellant had scars, whether he was circumcised, or whether he had a brown ring around his penis, although the evidence was that the appellant has a large appendix scar, was circumcised, and has a brown ring around his penis. The trial judge discounted the effect of the lack of detail and the minor inconsistencies on the complainant's credibility, in light of his accurate memory of his attendance and of the office and also in light of the similar fact evidence.

[30] Having rejected the appellant's denial, the trial judge found the charges had been proved beyond a reasonable doubt.

The complainant G.T.

[31] The final charges involved the appellant's step-nephew, G.T. The trial judge ruled that the similar fact evidence was not applicable to these charges and addressed these charges solely on the evidence respecting them.

[32] The Crown particularized two counts of indecent assault between September 1, 1978 and April 16, 1981, the first relating to incidents that took place at the appellant's home, and the second to incidents at the complainant's home.

[33] The complainant was born on April 16, 1965. Because his mother was very ill, he was sent to live with his paternal grandparents in England when he was ten. His mother died the next year, and the year after that his father married the appellant's wife's sister. Following their honeymoon, they picked up the complainant in England and brought him back to live with them in Cornwall. Besides being the appellant's brother-in-law, [page111] the complainant's father was the appellant's superior at the hospital, and their two families were very close.

[34] The complainant had many personal problems, particularly surrounding his mother's death and his relationship with his stepmother. The appellant was very supportive of the complainant, who confided in him and received his advice. When the complainant began high school he took up weightlifting, and the appellant suggested he train on the weights he had in his basement. The complainant said that he trained at the appellant's home two evenings a week after supper and that the appellant developed a weight-training program for him. The appellant had him remove his shorts in order to work on and view his stomach muscles. The appellant began massaging the complainant then progressed to touching his penis, assuring the complainant that this was alright. On at least ten occasions the appellant masturbated the complainant and performed oral sex on him.

[35] The complainant described an incident that occurred at his home during a Thanksgiving family dinner when he was 14. He said that he and the appellant were in his bedroom in the basement when the appellant gave him a massage, then removed the complainant's pants, masturbated him, unzipped his own pants and had the complainant give him oral sex. The appellant told him not to tell anyone. He described another occasion in the summer when he was 14 or 15 and the two of them were in the backyard in the evening after dark. He said the appellant offered him oral sex and he acquiesced. The complainant said the sexual activity went on for about a year.

[36] The complainant had a troubled life as a teenager. He left home at the age of 15 and had no contact with his father from age 15 to 17. He said that when the incidents began, he would go to the appellant's home on the ten-speed bike that the appellant and his wife had given him for his birthday.

[37] The appellant testified that he had weightlifting equipment in his basement that he used occasionally, but he did not recall the complainant ever using it. He denied all of the sexual incidents. The complainant's father confirmed that the complainant did attend at the appellant's home for weightlifting when he was 14, although he believed the complainant was still in elementary school at the time. He thought the complainant went once a week, that it was on Saturdays, and that he would have gone on his bike. The appellant's wife denied that the complainant was ever at her home for weightlifting either in the evenings during the week or on Saturdays. The trial judge accepted the evidence of the complainant's father as confirmatory of the weightlifting and discounted the evidence of the [page112] appellant's wife on the basis that she may not have been at home during the complainant's visits and because she was not a disinterested witness.

[38] There was also evidence that around 1989 the appellant and his wife agreed to lend the complainant $1,800 to pay debts. This loan was neither documented nor secured, and while the complainant only paid back $75, they took no action to collect the loan. The trial judge said that this evidence raised some doubt in his mind as to whether the appellant's wife knew about the alleged offences, and that this was the motivation for the unusually generous loan.

[39] The trial judge concluded that G.T. was a credible witness, and despite minor inconsistencies the trial judge accepted his evidence as to the material facts. The trial judge disbelieved the appellant's denial and concluded that the charges had been proved beyond a reasonable doubt.

The Issues

(1) Whether the trial judge erred by applying an inconsistent standard of scrutiny to the evidence of the complainants and the evidence of the appellant, excusing the complainants' inconsistencies because of the passage of time while attributing the appellant's lack of memory to dishonesty.

(2) Whether the trial judged erred by failing to distinguish between honesty and reliability in assessing the evidence of the complainants.

(3) Whether the trial judge erred by allowing the evidence of the speech therapy patient complainants to be admitted as similar fact evidence.

(4) Whether the trial judge erred by refusing to quash the charges involving G.H. for failure to allege an identifiable time frame.

(5) Whether the trial judge erred in imposing a sentence of six years.

Analysis

Issue 1: Inconsistent scrutiny of the credibility of the complainants and the appellant

[40] The appellant submits that the trial judge erred when he based his disbelief of the appellant's evidence on the fact that he [page113] had no independent memory of the six patient complainants, while the trial judge effectively discounted any discrepancies in the complainants' evidence based on their young age at the time and the fact that the events occurred more than 20 years before the trial. In my view, the trial judge made no error in his approach in the circumstances of this case.

[41] The appellant was firm in his evidence that he had no memory of any of the complainants, even after seeing and hearing them testify and after having access to his contemporaneous clinical notes about these former patients. The trial judge assessed this assertion in light of several factors, including the fact that K.S. is a paraplegic confined to a wheelchair whose mother registered a complaint against the appellant for sexual misconduct against her son. The trial judge found it incredible that the appellant would not remember this patient, and that he would suggest that his attempt to transfer the patient to another therapist may not have been because of this complaint but because of a disagreement with the parents over the frequency of the sessions.

[42] In my view, the trial judge was entitled to view the appellant's evidence the way he did and to draw the inference that the appellant was not telling the truth. The trial judge did not fault the appellant for an inability to recall details because of the passage of time. That would have been unfair. However, in this case, the trial judge was entitled to conclude that it was very unlikely that the appellant would not remember a patient whom he had treated for four years, who had unusual needs because he was confined to a wheelchair, and who caused a very serious complaint to be lodged against him.

[43] In contrast, it is accepted that children can have difficulty recounting details of an event: R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58, 56 C.C.C. (3d) 200, at pp. 54-55 S.C.R., pp. 219-20 C.C.C., and that adults will have difficulty remembering details of events that happened years ago: see, e.g., R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295, [1993] O.J. No. 2802 (C.A.). In Norman, the Court of Appeal faulted the trial judge for expecting the appellant to remember details of a corn roast that took place over 18 years before, yet overlooked significant discrepancies in the complainant's evidence, as well as contradictions with independent witnesses who did have memories of the corn roast. In this case, the trial judge was entitled to view dates and times and frequency of occurrences as minor details that one would not expect the complainants to remember accurately, as opposed to the appellant not remembering patients whom he treated, in some cases, for yea rs. I would not give effect to this ground of appeal. [page114]

Issue 2: Failure to distinguish between honesty and reliability

[44] The appellant submits that the trial judge failed to appreciate the problems with the reliability of the complainants' evidence, even if he found them to be honest. As examples, the appellant relies on the following problems with the complainants' evidence that he says were ignored by the trial judge:

(a) G.T. described his memory as one that came and went and that he was unsure of which memories of his were true. The appellant's wife's evidence was not controverted and supported the appellant's lack of involvement with G.T.;

(b) the six patient complainants had faulty memories of how the appellant dressed, although the evidence was clear that he always wore a three-piece suit and a tie and never wore a sweater or sweater vests;

(c) four of the complainants, D.W., J.L., G.H. and G.T., did not remember seeing the appendix scar on the appellant's abdomen, nor that he was circumcised and had a brown ring around his penis;

(d) K.S. changed some of his evidence between the preliminary hearing and the trial, such as how many times abuse occurred.

[45] Although it is the duty of a trial judge in a criminal case to give reasons for decision that tell the accused the basis for the verdict and that also provide the basis for meaningful appellate review, a trial judge need not mention every piece of evidence that supports his or her conclusion or address every piece of evidence that may not support that conclusion, as long as it is clear that the trial judge heard and considered all of the evidence in coming to his or her conclusions of fact and law: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30.

[46] In this case, the trial judge gave detailed reasons for his conclusions regarding the credibility and the reliability of the evidence of each witness. I agree that he did not address every potential problem with the evidence, such as the criminal record of the complainant C.F. and the troubled and sometimes unsavoury background of G.T., and whether these affected their credibility. Nor did he refer in every case to the memory problems of some of the complainants in terms of having repressed the memory of these events. However, I am satisfied, based on the reasons as a whole, that the trial judge heard and weighed all of the evidence and was fully cognizant of the frailties of the [page115] evidence of some of the complainants in terms of their memories of the events.

[47] The trial judge sought out corroborative evidence wherever he could in order to test both the credibility and the reliability of the complainants. He used the hospital therapy records made by the appellant to check the accuracy of the memory of each complainant as to when the events occurred as well as the duration of their therapy. He used the complainants' essentially accurate memories of the location of the appellant's office and their descriptions of the appellant. He also used the similar fact evidence to support the reliability of their stories and of their memory. Based on all the evidence, the trial judge was satisfied that the facts of the abuse described by the complainants had occurred, and that the memories of the complainants were reliable on those essential facts. He was entitled to come to that conclusion and made no error in doing so.

Issue 3: The similar fact evidence

[48] The trial judge delivered his ruling on the admissibility as similar fact evidence of the evidence respecting each count on the charges relating to the other counts at the end of the trial and before delivering his reasons for judgment. The ruling was made without the benefit of the Supreme Court's decision in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 10 57, C.C.C. (3d) 481, where the court set out a clear framework within which to analyze the principles for the admission and consideration of similar fact evidence.

[49] In his ruling, the trial judge described the evidence of each of the complainants, summarizing the evidence he later outlined in his reasons for judgment. The Crown submitted that the evidence was admissible to support the credibility of each of the complainants. The appellant submitted that the evidence showed no pattern or style that made it indicative of the acts of one person, and that there was the possibility of collusion among the complainants and tainting of the evidence because, except for J.L., all of the complainants either heard about the charges against the appellant in the media or were approached by the police.

[50] The trial judge set out the applicable legal principles relating to the admission of similar fact evidence referring to the framework set out by this court in R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, [1997] O.J. No. 3042, 116 C.C.C. (3d) 481 (C.A.). He began by stating the basic rule that such evidence is generally excluded, but may be admitted as an exception when its probative value outweighs its prejudicial effect. The first question is whether the impugned conduct was that of the accused. The trial [page116] judge found that there was evidence upon which the trier of fact could conclude that the similar acts were the acts of the appellant. The second question is whether the proposed evidence was material and relevant. He concluded that it supported the credibility of each complainant because in each case the appellant acted in a like manner or in a pattern. It was relevant and material because it went to the matters in issue and because of the appellant's denial. The third question is whe ther the conduct is discreditable. The trial judge found that it was.

[51] The fourth question is whether the probative value of the evidence outweighed its prejudicial effect. To determine its probative value, the trial judge addressed the strength of the evidence, the extent to which it supported the inference sought to be drawn, and the extent to which it tended to prove matters in issue. The trial judge concluded that the proposed evidence was strong, essentially because it was reliable: the evidence was given by adult witnesses who had personal involvement in the events, there was no possibility of collusion, fabrication, or collaboration among the complainants, and in spite of some uncertainty regarding details, there was no suggestion that the complainants had a motive to fabricate the evidence.

[52] In order to assess whether the evidence supported the intended inference, that the complainants' testimony was credible, the trial judge analyzed the similarities in the proposed evidence and concluded that they were fairly extensive in the cases involving the appellant's former patients. The persons involved were pre-teen or young teenage boys who required speech therapy. Each boy was attending school and speech therapy at the Cornwall General Hospital. The description of the appellant's office provided by each complainant was similar, except in the case where the office was in the building next door. All the events took place between 1978 and 1984, except the incidents involving J.L., which began in 1977. The alleged events all involved some or all of fondling, oral sex, and masturbation in the office during the course of the speech therapy sessions.

[53] The trial judge concluded that the similarity of the totality of the circumstances of the events involving the six former speech therapy patients, including the sexual activities, made the evidence compelling and highly probative. He also considered the evidence probative because it tended to prove the matters in issue. In the case of G.T., the circumstances were different. They did not involve speech therapy but a family relationship. Because the similarity of the evidence of G.T. was limited to the sexual activity, the trial judge concluded that its probative value as similar fact evidence was low. [page117]

[54] In assessing the prejudicial effect of the evidence, the trial judge recognized that discreditable conduct is inherently prejudicial, but also referred to R. v. B. (L.), at para. 50, where the court stated that the higher the probative value of the evidence, the lesser the prejudicial effect, because the prejudicial effect is the risk of convicting based on bad character rather than on evidence of the commission of the offence. If the similar fact evidence is cogent, its probative value is high. Furthermore, without the benefit of Handy, and without labelling them, the trial judge was able to address both the moral prejudice as well as the reasoning prejudice requirements of the test. He found little moral prejudice because the extent to which the proposed evidence may support an inference of guilt based on bad character was limited, as many of the similarities related to surrounding circumstances rather than the sexual conduct itself. He also concluded that without a jury, there wa s little likelihood that the similar fact evidence would confuse the issues. He found that the delay between the time of the events and the laying of the charges did not cause the appellant any prejudice.

[55] The trial judge concluded that the probative value of the similar fact evidence regarding the six former patients outweighed its prejudicial effect and was therefore admissible to prove the counts related to each patient complainant. He also held that the evidence of the appellant's step-nephew, G.T., was not admissible as similar fact evidence; nor was the evidence of the other complainants admissible to prove the charges relating to G.T.

[56] It is clear following Handy that the trial judge erred by identifying the issue to which the similar fact evidence was directed as the credibility of the complainants. The problem with saying the evidence goes to the credibility of the complainant is that anything that denigrates an accused will enhance the credibility of the complainant, and therefore it states the issue too broadly. However, in this case, the error is essentially one of nomenclature rather than substance. The issue in the case was not the identity of the appellant, because each of the six complainants was a patient of the appellant and attended speech therapy with him in his office at the Cornwall General Hospital. Rather the issue was whether the sexual incidents occurred during the speech therapy sessions as alleged. The similar fact evidence went to the issue of whether the actus reus of the offence occurred in each case, which turned on the credibility and reliability of the evidence of the complainants on tha t issue, as opposed to their general honesty. Therefore, although the matter in issue was the actus reus of the offences, in this case the trial judge did not err by referring to the matter as the credibility of [page118] the complainants, particularly when he did not yet have the Handy decision.

[57] The main concern raised by the appellant was whether the evidence was tainted by the way it was gathered. In Handy, the Supreme Court emphasized the critical importance of identifying collusion or tainting of similar fact evidence. As the court discussed at para. 110, the reason similar fact evidence is probative is because of the unlikelihood of the coincidence of the reports of the similar events. But the coincidence, and therefore the probative value of the evidence, is undermined if it is tainted by collusion among the witnesses or in any other way. Where there is some evidence of actual collusion, the onus is on the Crown to satisfy the trial judge on a balance of probabilities that the evidence of similar facts is not tainted with collusion before it can be admitted. However, if the evidence amounts only to the opportunity for collusion, then the question whether the evidence was tainted is to be left to the trier of fact when weighing the similar fact evidence: see Handy at p aras. 111-12.

[58] In this case, the potential for tainting of the evidence arose from the way in which the complainants came forward and gave their statements to the police. Only J.L. came forward independently to the police. The others came forward either after they heard about charges against the appellant or after being contacted by the police because they were former speech therapy patients of the appellant. In other words, they only came forward when there was some suggestion that the appellant was involved in sexual wrongdoing with speech therapy patients. Since the focus of the coincidence identified by the trial judge was the fact that the victims were all male pre-teen and young teenage speech therapy patients of the appellant, if the self-identification of the victims in that category was tainted, the cogency of the unlikelihood of that coincidence could be significantly undermined.

[59] Little evidence was led at the trial as to the circumstances and details of the complainants' contact with police, nor was there much, if any, cross-examination on the issue. The appellant took the position at trial that there was an air of reality to the possibility of tainting by the police when the complainants were contacted and that the onus was on the Crown to disprove it.

[60] The trial judge addressed the issue of collusion in his ruling, specifically rejecting it. Although he did not use the term tainting, I am satisfied that he was alive to the issue of tainting, as it was specifically raised by counsel in argument, and that his ruling included rejection of any "real possibility" of tainting.

[61] That ruling is entitled to deference and is supported by the record, to the extent that the issue was explored in evidence. The [page119] complainant D.W. stated that he was called by the investigating officer, who asked him if he had ever been to a speech therapist in Cornwall and if there was anything he wanted to tell the officer about that. The complainant P.S. said that he could not remember the appellant's name, but when the officer said the name, "it just clicked ... , as soon as I heard his name, it ... rang a bell." The mother of the complainant K.S. testified that they came forward after hearing on the radio about charges against the appellant. K.S. said that he at first did not remember the appellant's name, that later the officer told him the name, but that he had already heard it on the radio by then. The complainant G.H. testified that when he got the phone call from the police, the memories that he had been blocking came back as soon as the officer mentioned speech therapist. The c omplainant C.F. was asked if the police officer who interviewed him told him details about other people coming forward. He said that he was told that there was an investigation into the speech therapist and that there were other people making accusations.

[62] In my view, although on the evidence there was the potential for tainting disclosed, the trial judge did not err in concluding in his ruling on the admissibility of the evidence as similar fact evidence that there was no air of reality to it. As he did not mention the collusion issue again when weighing all of the evidence in his reasons for judgment, it is clear that he was satisfied that there was no collusion or tainting that affected the evidence given by the complainants.

[63] The other concern raised by the appellant is the trial judge's treatment of prejudice on two bases. The first was the trial judge's statement that because the aspects of the similar fact evidence that related to the circumstances surrounding the abuse were not prejudicial, that that limited the prejudicial effect of the similar fact evidence as a whole. I believe what the trial judge meant by this was that because he was hearing the details of the alleged sexual abuse (the prejudicial part of the similar fact evidence) in a multi-count indictment, admitting the evidence as similar fact did not add to its prejudicial effect, especially where there was no jury. The other concern was the trial judge's conclusion that the delay in reporting did not prejudice the appellant in his ability to respond to the allegations. It is unclear how this aspect of prejudice is relevant to the admissibility of the similar fact evidence. However, if it were, the trial judge was entitled to reach this conclusion when the ap pellant had his treatment records available to him to refresh his memory regarding each of the complainants.

[64] In my view, the trial judge performed a careful and cogent analysis of the similar fact evidence and its admissibility and [page120] made no error in his decision to admit the evidence only of the six former patients as similar fact evidence and not to admit the evidence of G.T. for that purpose.

Issue 4: The sufficiency of the indictment against G.H.

[65] The appellant argued both at trial and on the appeal that the charges involving G.H. should have been quashed under s. 601(1) of the Criminal Code, R.S.C. 1985, c. C-46 because of the vagueness of the time frame described: from his birth to before he became an adult. Section 581(3) requires that a count contain sufficient details to give the accused reasonable information of the act to be proved against him, "but otherwise, the absence or insufficiency of details does not vitiate the count". In R. v. B. (G.), at p. 45 S.C.R., p. 212 C.C.C., the Supreme Court of Canada stated that the date of the offence is not generally an essential element for sexual assault. What is necessary is that the accused have sufficient information to identify the transaction and to prepare a defence.

[66] The trial judge ruled that the indictment in this case was sufficient. In my view, the trial judge did not err in this conclusion. In this case, the charge related to alleged sexual activity that took place during speech therapy sessions, the dates of which were documented in the hospital therapy records prepared by the appellant. The appellant had full disclosure of these records and had heard the testimony of the complainants at the preliminary hearing: see R. v. MacLean, 1988 3155 (BC CA), [1988] B.C.J. No. 2042, 45 C.C.C. (3d) 185 (C.A.), and therefore had the information necessary to identify the transaction and prepare a defence. Finally, contrary to the submission of the appellant, I am satisfied that in spite of the wording of the charges, following the judgment at trial, there could be no confusion regarding the appellant's ability to identify the transactions that formed the subject of the charges and to plead autrefois convict in respect these charges. I would not give effect to this ground of appeal.

Issue 5: Sentence

[67] The appellant appeals the length of the sentence imposed by the trial judge. He suggests that it is outside the proper range where there was no violence or penetration involved in the offences, and further that the trial judge erred by treating lack of remorse as an aggravating factor.

[68] I would not interfere with the sentence imposed by the trial judge. In R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061 (C.A.), this court stated that for sexual offences involving adults in [page121] a position of trust who groom children for sexual abuse over a substantial period of time, the normal range is in the mid to upper single digits. At trial, the appellant suggested that the appropriate sentence was 33 months to five years. The Crown suggested seven to nine years. The trial judge imposed six years, only one year more than the upper end of the appellant's submission.

[69] In his reasons for sentence, the trial judge fully reviewed the circumstances, including any mitigating factors, which he identified as the age of the appellant, 57 years old, and the fact that he resided with his wife of many years; the fact that the offences were historical and there was no evidence of any subsequent offences after 1985; that the appellant had no criminal record; that he had not worked since 1992 and was active in his church; and that it was unlikely he would re-offend. In discussing the aggravating factors, the trial judge mentioned the abuse of trust and the fact that the appellant showed no remorse for the victims. The trial judge erred in describing lack of remorse as an aggravating factor. However, it appears to me that the trial judge did not give any weight to that factor in the duration of the sentence, because even though the appellant showed no remorse, the trial judge was satisfied that he was not likely to re-offend.

[70] These were very serious offences involving seven young people who were already vulnerable. The appellant abused his position of trust both as a speech therapist and as a step- uncle. The sentence is well within the range, reflecting the historical nature of the offences and the conclusion that it is unlikely that the appellant will re-offend. The appeal against sentence is dismissed.

Result

[71] The appeals against the convictions and against the sentence are dismissed.

Appeal dismissed.