COURT OF APPEAL FOR ONTARIO
DATE: 20050112
DOCKET: C39074
ROSENBERG, FELDMAN and SIMMONS JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Tina Yuen
for the respondent
Respondent
- and -
HUGO LLORENZ
Richard Litkowski
for the appellant
Appellant
Heard: November 25, 2004
On appeal from the convictions entered by Justice Arthur M. Gans of the Superior Court of Justice, sitting without a jury, on October 16, 2002.
ROSENBERG J.A.:
[1] The appellant appeals his convictions by Gans J. on a number of related sexual offences. The offences were alleged to have occurred when the complainant was between the ages of 10 and 15 years. Credibility, including reliability of the evidence of the complainant and the appellant, was the only real issue in the case. While the trial judge made some errors in his reasons for judgment, I am satisfied that the verdict would inevitably have been the same and that these errors did not impact on the correctness of the verdict.
THE FACTS
[2] The facts of the offences are unusual and rooted in the complainant’s family’s South American culture and belief system. The Crown alleged that the appellant took advantage of this belief system to virtually take control of the complainant’s life for a period of almost six years. The complainant’s mother believed in Santeria, a set of beliefs that emphasized the worship of saints, healing rituals and what the complainant herself later described as superstitions. The appellant met the complainant in 1985 when she was 10 years old. The appellant was visiting the complainant’s home and reading tarot cards for her mother. At the time, the appellant was operating a modeling school for young women from his apartment. The complainant’s cousin was a model and the complainant was very interested in becoming a model herself. A short time later, the complainant’s mother took her to the appellant’s apartment and she joined the group of other girls. The complainant was the youngest. The mothers of the girls were not allowed to stay during these sessions.
[3] During that first session, the appellant began to touch the complainant in inappropriate ways, such as putting his hand between her knees. On another occasion, when the appellant did something similar, the complainant told him to take his hand away or she would tell her mother. The appellant became angry and told her he thought of her as his daughter and hit her lightly on the mouth. The complainant was too afraid to tell her mother. She continued at the modeling school until it closed after a few months.
[4] However, the appellant maintained his hold on the complainant through the mother’s belief system. He told the complainant and her mother that the complainant was cursed and would die when she became 16 years old. The appellant said that he was one of only seven people that could heal her and lift the curse, but it would be a long and slow process. He would have to remove the negative energy from her soul. The complainant and her mother were terrified and agreed to the “treatment” by the appellant.
[5] Thereafter, the complainant was required to spend most of her free time with the appellant at his apartment. She would go there after school and do her homework. The appellant helped her with her homework and they would also watch television and videos. They would have meals together. The appellant set up a strict regime involving curfews. The appellant did not approve of the complainant’s friends and limited her access to them. The complainant kept clothes at the appellant’s apartment and she would often sleep there.
[6] The “treatment” to lift the curse began after the modeling school closed. The appellant began by placing his hands on her head and upper chest, over her clothes. He would make use of oils and what he claimed was holy water. This conduct became increasingly more intrusive on the pretence that physical contact was necessary so that the appellant could transfer his energy to the complainant. Eventually, the various rituals required that the complainant be unclothed and then led to oral sex and, finally, by the time the complainant was 11 years of age, sexual intercourse.
[7] The complainant related the various rituals and acts by the appellant in some detail. She also testified about the appellant’s use of commercial pornography, which he made her watch. He had her wear lingerie that he had purchased for her. The complainant was able to describe some of the pornographic videos and a later search of the appellant’s apartment by the police confirmed the appellant’s possession of these videos and the lingerie.
[8] The complainant began to have doubts about the appellant after a trip to Uruguay when she was 15 years of age. Her mother took her to a Santeria priest who performed a cleansing ceremony and told them that someone was taking advantage of them. Upon returning to Canada, the sexual contact with the appellant resumed, but only briefly. On one occasion, the complainant was able to see that a movement of a chandelier in the apartment, which the appellant attributed to the presence of a demon, was actually a trick done with fishing line. This was the last sexual contact with the appellant. The complainant did not entirely break away from the appellant. She admitted to asking him for money on occasion and calling him on occasion.
[9] After her sixteenth birthday, the complainant became depressed. She fell in with a bad crowd at school and began taking drugs. She eventually dropped out of school. In 1993, the complainant sought psychiatric assistance after a suicide attempt. She told the psychiatrist of the sexual abuse and he encouraged her to go to the police. The complainant did so and the appellant was eventually charged. The appellant was convicted after a trial by judge and jury. This court set aside that conviction. The trial before Gans J. was the retrial. The appellant had elected to be tried by a judge without a jury.
[10] There were some problems with the complainant’s story. As indicated, she maintained some contact with the appellant even after she realized he was a fraud and had abused her. As well, the complainant kept a diary throughout this period but she made no mention of the sexual abuse in the diary. The complainant provided explanations for this conduct. For example, the appellant had told her he was a psychic and knew everything she was doing so she was afraid to write the truth in her own personal diary.
[11] The appellant testified. He denied all the allegations of sexual abuse. He testified that the complainant willingly came to his apartment because she saw it as a refuge from her situation at home. He admitted that he had told the complainant’s mother that a part of her daughter would die. He denied that it was a physical death; rather he was speaking of a spiritual death. He told the complainant’s mother that he would have to see her daughter two or three times a month to perform a ritual to transfer energy to her. However, the ritual simply involved holding hands and closing eyes and the laying on of hands. The appellant denied ever watching the pornographic tapes in the presence of the complainant. He denied buying lingerie for the complainant. He said that the lingerie found by the police may have belonged to a girlfriend of one of his roommates. He had some difficulty explaining how such a small size would fit a mature woman.
[12] The appellant testified that he was the one who ended the relationship with the complainant because he disapproved of her friends and her new lifestyle after she returned from Uruguay. Nevertheless, the complainant would continue to call him sporadically. The appellant also relied upon the fact that, at different times, the appellant had roommates staying at the apartment and thus would have had little opportunity to commit the acts testified to by the complainant.
ANALYSIS
[13] The core of the appellant’s complaint about the trial judge’s reasons for conviction turns on the submission that the trial judge applied different standards of scrutiny to the evidence of the appellant as compared to the complainant. He also submits that the trial judge improperly relied upon certain parts of the evidence to bolster the complainant’s credibility. I will deal with the latter submissions first.
[14] Without objection from the defence, one of the investigating officers testified about the complainant’s demeanour in the period from 1993 to 1995. The officer described the complainant at the time as scared, confused and mistrustful. The trial judge referred to this evidence in his reasons for judgment. The appellant submits that the trial judge erred in relying on this evidence. I do not agree. The reference to this evidence was made in response to a submission from the appellant that the complainant’s evidence was unreliable because she delayed in going to the police even after she realized that the appellant was a “charlatan”. In my view, the trial judge did not misuse this evidence for the limited purpose of testing this submission. It seems that the officer had frequent contact with the complainant during this period and was in a position to give some assistance to the trial judge about the complainant’s conduct at the time. The evidence may have helped in explaining, to a limited extent, the complainant’s delay in coming forward. The evidence was otherwise harmless. The fact that the complainant was scared, confused and mistrustful did not suggest that she was either lying or telling the truth. The trial judge did not abdicate his responsibility to determine whether the complainant’s testimony at trial was true.
[15] As part of his narrative of the evidence, the trial judge also noted that there was little cross-examination by defence counsel on prior inconsistent statements. The trial judge stated that it was “fair to conclude that her testimony before me was consistent with the testimony given on previous occasions”. There are two problems with this statement. First, it is somewhat speculative. Second, if the trial judge was using the existence of prior consistent statements to bolster the credibility of the complainant, he was in error. There was no allegation of recent fabrication, and so prior consistent statements had no evidentiary value. The fact that a witness has been able to tell the same story on prior occasions is of little assistance in testing her credibility. See R. v. Campbell (1977), 1977 1191 (ON CA), 38 C.C.C. (2d) 6 at 18 (Ont. C.A.).
[16] This reference was unfortunate but it does not seem to have had any impact on the trial judge’s assessment of the complainant’s evidence. The trial judge went on to state, in relation to both demeanour and consistency, “sincerity is not necessarily proof of reliability. I am obliged to assess her evidence in light of its inherent probabilities.” It seems to me that what the trial judge meant was that her “apparent sincerity” was not proof of reliability. Far from placing undue or improper emphasis on demeanour, it seems to me that the trial judge was cautioning himself against relying upon demeanour to decide the credibility of the complainant. The trial judge went on to consider the evidence and explain why he accepted the evidence of the complainant and disbelieved the evidence of the appellant. His reasons for making those assessments were cogent and squarely founded on the testimony at trial. He listed a number of items in the evidence, including some of the appellant’s testimony, that confirmed the evidence of the complainant.
[17] The appellant submits that the trial judge reversed the burden of proof. In discussing some of the confirmatory evidence, such as the pornographic videotapes, the trial judge noted that the appellant’s explanations “on this and other matters left me far from convinced”. On its own, this comment suggests that the trial judge was shifting the burden of proof to the appellant. In my view, this was simply an unfortunate turn of phrase. In other parts of the judgement, the trial judge recognized there was no burden on the appellant to prove his innocence. The trial judge referred expressly to R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). He explained how he was applying that instruction to assess the appellant’s credibility and why he found the appellant’s evidence “on major issues to be untrue”.
[18] As indicated, the main thrust of the appellant’s submissions was that the trial judge applied different standards of scrutiny in assessing the evidence of the appellant and the complainant. He submits that the trial judge rejected the appellant’s evidence because of inconsistencies on minor points. Notwithstanding Mr. Litkowski’s very careful and helpful submissions, I am satisfied that the trial judge did not err. While it is true that some of the matters referred to by the trial judge may seem minor, there were other major problems with the appellant’s evidence that went to the heart of this case. Most telling was the appellant’s inability to explain the nature of the curse that he said had been put on the complainant. This was a matter of considerable importance, even on the appellant’s evidence, and yet he professed not to be able to remember what part of the complainant was to die when she turned sixteen years of age. He also claimed to have cured his girlfriend of cancer but could not remember how. By contrast, as the trial judge pointed out, the appellant was able to recall in great detail matters of little consequence.
[19] The appellant submits that in contrast to the way he evaluated the appellant’s evidence the trial judge overlooked major inconsistencies in the complainant’s evidence. The appellant relies in particular to the trial judge’s failure to deal with the complainant’s evidence concerning her diary. I have already touched on this evidence. As indicated, the complainant kept a diary for much of the period of time she was associating with the appellant. She agreed that there were no negative entries in the diary about the appellant. When she was asked about this in cross-examination, she explained that she would not write anything in her diary that her family might see. When it was pointed out that she had in fact written negative things about her mother, the complainant testified that perhaps she wanted her mother to see those entries. As indicated above, she also testified that she believed the appellant was a psychic and knew everything she was doing so she was afraid to write the truth in the diary.
[20] It might have been preferable if the trial judge had expressly dealt with the diary issue. However, having had the opportunity to review the entire transcript of the complainant’s evidence, I would not attribute to that issue the weight that the appellant does. It must be remembered that even on the appellant’s story, the complainant was under a virtual death sentence in these years. Her life was controlled by the appellant and by a set of beliefs in a way that any adolescent would have trouble dealing with. The complainant offered an explanation for the diary that makes sense in that context. The trial judge did deal with the other concerns that the appellant relied upon, such as the complainant’s continuing relationship of sorts with the appellant after the Uruguay trip.
[21] I have not been persuaded that the trial judge applied different standards of scrutiny to the evidence of the appellant and the complainant. The case against the appellant was formidable. His testimony, which I have had the chance to review, is marked by serious inconsistencies on important matters. As I have indicated, the complainant’s evidence is supported in many respects by the appellant’s own evidence and by some independent circumstantial evidence.
DISPOSITION
[22] Accordingly, I would dismiss the appeal.
Signed: “M. Rosenberg J.A.”
“I agree K. Feldman J.A.”
“I agree Janet Simmons J.A.