DATE: 20051018
DOCKET: C40864
COURT OF APPEAL FOR ONTARIO
LABROSSE, SHARPE and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Maureen Forestell,
for the appellant
Respondent
- and -
DENNIS MORIN
Alison Hurst,
for the respondent
Appellant
Heard &
Released Orally: October 13, 2005
On appeal from the judgment of Justice John R. Jennings of the Superior Court of Justice, sitting with a jury, dated December 12, 2002 made in Toronto.
BY THE COURT:
[1] The appellant appeals his conviction on historical sexual charges by a court composed of a judge and jury on December 12, 2002. He was convicted of indecent assault, gross indecency and sexual assault in relation to M.M., when M.M was ten to sixteen years old, and of sexually assaulting M.L when he was fourteen years old.
[2] M.M. was thirty-five years old at the time of the trial. He had a criminal record for theft, fraud, break and enter, and a weapons offence. From the time he was approximately ten years old, M.M. would “hang around” the Canadian National Exhibition (“CNE”) and Maple Leafs Gardens (“the Gardens”) where the appellant was employed as a security supervisor. It was M.M.’s evidence that the appellant gave him entry to both places and that their relationship became sexual. M.M. testified to numerous sexual incidents of various kinds at the CNE, at the Gardens and at the appellant’s home.
[3] M.L. was thirty-four years old at the time of the trial. He met the appellant at a friend’s house and the appellant let him into the Gardens to see hockey games for free. M.L. was fifteen years old at the time of a single alleged assault at the friend’s house consisting of fondling over his clothing.
[4] Prior to these proceedings, the complainants had never met.
[5] At the time of the trial, the appellant was fifty-six years old and at all relevant times, he worked as a security supervisor at the CNE and the Gardens. He also worked as part of a cleaning and maintenance crew at the Gardens. He acknowledged that he was acquainted with both boys and that he had given them free admission where he worked. The appellant had a criminal record including a dated drug conviction and a conviction for fraud.
[6] The appellant denied any sexual contact with either of the complainants.
[7] The appellant raises issues with the charge to the jury with respect to the following:
the legal definition of consent;
the reasonableness of the finding of guilt on count three;
the use of the criminal record of the appellant and M.M.;
the similar fact evidence; and
although not specified as an issue, in his factum and at the oral hearing, the appellant also challenged the trial judge’s handling of M.M.’s prior inconsistent statements.
[8] As to the second issue, the Crown concedes that there was insufficient evidence upon which the jury could have found that M.M. did not consent to the fellatio incident at the appellant’s house. Accordingly, we agree that the conviction on count three is unreasonable.
The legal definition of consent
[9] The appellant submits that the trial judge erred in charging the jury that consent is the voluntary agreement to do something “without reservation”. It is the appellant’s position that this error warrants a new trial on count two, namely, the appellant’s gross indecency against M.M. We do not agree.
[10] In our view, the words “without reservation” should not have been used to qualify the definition of consent. However, we accept the Crown’s submission that the words are not fatal in the circumstances of this case.
[11] Firstly, the appellant’s trial counsel raised no objection to the trial judge’s use of the words “without reservation”. Furthermore, we note the trial judge’s subsequent charge on consent. In answer to a question from the jury, he defined consent as simply the “voluntary agreement” to do something and thereby conveyed the appropriate definition of consent to the jury.
[12] Secondly, M.M.’s evidence was that the gross indecency (specifically several incidents of fellatio) occurred when he was under fourteen years of age, when he could not legally consent to the conduct at issue.
[13] Thirdly, even if the jury found that the incidents of fellatio and anal sex occurred when M.M. was fourteen years of age or older and that M.M. consented to this conduct, it was still open to the jury to find that this conduct was grossly indecent. The jury was properly instructed that “the taking of a young person’s penis into one’s mouth, or the insertion of one’s penis into the anus of a young person are both such a marked departure from decent conduct of the average Canadian as to constitute gross indecency.”
The use of the criminal record of the appellant and M.M.
[14] The appellant submits that the charge to the jury had the effect of both minimizing the significance of M.M.’s record and highlighting the appellant’s record and furthermore, that the instruction was not sufficiently clear about the use to be made of the appellant’s record.
[15] In our view, the trial judge properly instructed the jury that the appellant’s criminal record could be used only in assessing the appellant’s credibility, and that it could not be used to show that he was more likely to have committed the alleged offences. We do not accept that the charge minimized or highlighted the record of one or the other.
[16] Moreover, the sufficiency of the charge is supported by the fact that defence counsel, who actively participated in the pre-charge discussions and raised numerous objections, did not object to this portion of the charge.
[17] We would not give effect to this ground of appeal.
The similar fact evidence
[18] At the conclusion of the evidence and before counsel delivered their closing addresses, the Crown brought a similar fact application to permit the jury to use M.L.’s evidence to bolster the credibility of M.M. The trial judge allowed the application. The appellant submits that the trial judge erred in allowing the application and also erred in his instruction to the jury on this issue.
[19] The question to be decided in this case was whether the sexual offences occurred. The trial judge admitted the similar fact evidence as probative of this issue, which in turn depended on the credibility of the complainants’ evidence of the assaults. There were numerous similarities in the evidence and although not specifically stated in the ruling, the dissimilarities in the evidence were clearly before the trial judge as the same issues had been raised by defence counsel before the trial judge made his ruling.
[20] It must be remembered that this evidence was already before the jury and, as noted by the trial judge, the defence did not apply to sever these counts. The value of the evidence and the weight to be attached to the similarities and/or dissimilarities are matters for the trial judge. We are not prepared to accept that the trial judge was in error in finding a sufficient degree of connection between the evidence of the two complainants. Considerable discretion must be accorded to trial judges who are charged with the delicate task of balancing the probative value of this evidence against its prejudicial effect.
[21] It would have been highly preferable for the trial judge to review the dissimilarities in the evidence when instructing the jury on the use it could make of the similar fact evidence. However, in our view, the charge to the jury sufficiently guided the jury away from prohibited reasoning towards the proper use of the evidence, namely propensity reasoning. Although she actively participated in pre-and post charge discussions, defence counsel did not object to the portion of the charge on similar fact evidence.
Prior inconsistent statements
[22] The appellant also submits that the trial judge was in error in his instructions to the jury on prior inconsistent statements made by M.M., namely, his sworn statements to the police and at the preliminary hearing, and his evidence at the trial.
[23] Defence counsel properly objected to the charge on the basis that the trial judge’s description of M.M. being “confused” did not adequately capture the fact that he had previously given conflicting evidence under oath. The trial judge re-charged the jury, stating that: “I think that I perhaps understated the matter.”
[24] In the context of these proceedings, the jury would have been well aware of the inconsistencies in M.M.’s evidence and they were adequately instructed on the manner in which these inconsistencies could impact on his credibility. Once again, it is relevant that defence counsel did not object to the re-charge, nor did she seek additional instructions.
Disposition
[25] In the result, we would allow the appeal and quash the conviction under count three. In all other respect, the appeal is dismissed.
RELEASED:
“OCT 18 2005” “J.M. Labrosse J.A.”
“Robert Sharpe J.A.”
“E.E. Gillese J.A.”