DATE: 20050331

DOCKET: C40163

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- MICHEL MARLEAU (Applicant/Appellant)

BEFORE:

LABROSSE, LANG and LaFORME JJ.A.

COUNSEL:

John Norris

for the appellant

Jamie Klukach

for the respondent

HEARD:

March 24, 2005

On appeal from the convictions entered by Justice James A. Fontana of the Ontario Court of Justice on March 23, 2001 and from the sentence imposed by Fontana J. on March 5, 2002.

E N D O R S E M E N T

LANG. J.A.:

[1] After an eleven-day trial, Fontana J. convicted the appellant of sexual assault, invitation to sexual touching, and exposing genital organs for a sexual purpose. He acquitted him on a count of touching the complainant for a sexual purpose.

[2] Fontana J. found the appellant to be a long-term offender and sentenced him to twelve months imprisonment on each of the three convictions, to be served consecutively. In addition, he imposed a seven-year community supervision order. The appellant appeals both the convictions and sentence.

[3] In convicting the appellant, the trial judge accepted the evidence of the eight-year old complainant who suffered from learning disabilities. She was seven years old at the time of the offences. The appellant lived near the complainant. The complainant played with Eileen, a slightly older girl, who was the daughter of a woman who was a friend of the appellant and with whom the appellant boarded.

[4] The complainant testified that the appellant took her to secluded areas over a period of time and touched her private parts over her clothing. Eileen and her mother testified that the complainant had later denied that the appellant had touched her improperly. In addition to the appellant touching the complainant, however, the complainant also testified that the appellant had made her touch him. She said, on one occasion, the appellant exposed his penis, had her grasp and rub it and that “white stuff” had come out. The complainant had spontaneously disclosed the allegations to her mother without prompting.

Conviction Appeal

[5] The appellant appeals his conviction on the basis that the verdicts were unreasonable and could not be sustained on the evidence before the trial judge.

[6] In particular, the appellant submits that because the trial judge was left with a reasonable doubt about the appellant touching the complainant, he should also have had a reasonable doubt about the complainant touching the appellant. To put it another way, the trial judge found that Eileen’s evidence of the complainant’s recantation raised a reasonable doubt that the appellant touched the complainant. In those circumstances, argues the appellant – given the inextricable connection between the allegations – the trial judge should also have had a reasonable doubt as to the complainant’s evidence that she was forced to touch the appellant.

[7] The trial judge canvassed the troubling areas of the complainant’s evidence, taking into account the interrupted nature of the trial and the complainant’s tender years, the manner in which she gave evidence, and her straightforward approach. He was alive to the inconsistencies in her evidence. While the evidence of Eileen and her mother confirmed many aspects of the complainant’s evidence, the trial judge was troubled by their evidence that the complainant had recanted saying: “Mike didn’t touch me”. The trial judge, however, accepted the complainant’s evidence relating to her touching the penis, which evidence he found to be graphic, clear, and unambiguous.

[8] After weighing all the evidence, the trial judge found the accused guilty of the three offences and not guilty of sexually touching the complainant.

[9] His reasons show a careful and close consideration of all the evidence, including the context of the conversation between the complainant and Eileen. With respect to the offences relating to the complainant touching the accused, the trial judge took into consideration the graphic and concrete details given by this young child as to the precise manner in which she rubbed the appellant’s penis, followed by “white stuff” coming out.

[10] In my view, the trial judge showed sensitivity and common sense in the manner in which he considered and weighed the complainant’s and Eileen’s evidence. His findings were consistent with the common sense approach mandated by R. v. B.(G.) (1990), 56 C.C.C. (3d) 200 (S.C.C.) and R. v. W.(R.) (1992), 13 C.R. (4th) 257 (S.C.C.). The convictions were open to the trial judge on the evidence before him. This ground of appeal does not succeed.

The Rule Against Multiple Convictions

[11] In R. v. Prince (1986), 30 C.C.C. (3d) 35 at 43-52, Dickson C.J. gave further guidance with respect to the application of the principle set out in Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524 at 535. To invoke the application of the rule against multiple convictions, the accused must show both a factual nexus and a legal nexus between the offences.

[12] The first part of that test, the factual nexus, was clearly met in this case because all three charges arise from the same act: the appellant inviting the complainant to touch his penis and exposing his penis for this purpose. The second part of that test, the legal nexus, or the adequacy of the relationship between the offences, was also met. In particular, the sexual assault consumed the elements essential for convictions on the other two counts, rendering those convictions redundant. The appellant has satisfied both parts of the test.

Sentence appeal

[13] The trial judge sentenced the appellant to a total of three years by imposing twelve-month consecutive sentences for each of the three convictions. The Crown concedes that a twelve-month sentence was not available for indecent exposure, which is a summary offence carrying a maximum penalty of six months.

[14] The trial judge properly considered the circumstances of this offence and the appellant’s forty-seven prior convictions, two of which related to the sexual abuse of small children. Among other noteworthy factors, he also considered the appellant’s diagnoses, his risk of re-offending, and his need for treatment. Although the trial judge divided the sentence among the three convictions, reading his reasons as a whole, it is apparent that he considered three years as a global sentence. I see no reason to interfere.

Disposition

[15] In the result, I would dismiss the conviction appeal except to the extent that I would substitute stays for the convictions for sexual touching and exposure. Leave to appeal sentence is granted, but the appeal is dismissed except to replace the sentence of twelve months consecutive on each count with a sentence of three years for sexual assault.

Signed: “Susan E. Lang J.A.”

“I agree J.M. Labrosse J.A.”

“I agree H.S. LaForme J.A.”