DATE: 20060505

DOCKET: C43730

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. DAVID BRIAN HUTCHINSON (Applicant/Appellant)

BEFORE:

MCMURTRY C.J.O., DOHERTY and CRONK JJ.A.

COUNSEL:

Robert Sheppard

for the appellant

Debbie Calderwood

for the respondent

HEARD: April 21, 2006

RELEASED ORALLY: April 21, 2006

On appeal from the conviction entered by Justice J. Borkovich of the Superior Court of Justice dated April 21, 2005 and the sentence imposed on June 6, 2005.

E N D O R S E M E N T

[1] The reasons for judgment and the reasons for sentence are inadequate. The accused and the community deserve better.

[2] We are satisfied, however, that the sexual assault conviction should be sustained despite the inadequacies in the reasons. We are satisfied based on the trial record and the very limited reasons of the trial judge that this court can make the basis of the conviction clear to the appellant.

[3] From the reasons, it is clear that the trial judge, while accepting the complainant’s evidence, was not satisfied that the complainant’s evidence alone could support a conviction. The complainant was eleven years old at trial. The trial judge was satisfied, however, that the appellant’s admission during his testimony of an act of fellatio between himself and the complainant provided strong confirmation of the complainant’s evidence. The trial judge went on to reject the appellant’s explanation to the effect that the nine year old complainant had on her own initiative performed fellatio on the appellant while he was asleep and that he stopped her as soon as he woke up and saw what was happening.

[4] The trial judge found that the appellant’s explanation was “unproven”. Obviously, there was no onus on the appellant to prove anything. We accept Crown counsel’s submission, however, that the use of the word “unproven” must be considered along with the accurate statement of the onus of proof appearing immediately before the reference to the word “unproven”. Considering the reasons as a whole, we take them as an outright rejection by the trial judge of the appellant’s explanation in relation to the act of fellatio.

[5] We note that counsel for the appellant at trial referred to the appellant’s evidence concerning the fellatio as “very bizarre”. We also note that counsel did not rely on this aspect of his client’s own evidence at trial. In the context of the rest of the appellant’s evidence, we are satisfied that his explanation that the nine year old complainant committed fellatio while he was asleep is simply incapable of belief on any reasonable view of the evidence. Once that explanation is rejected, it follows that the act of fellatio amounted to a sexual assault. That finding provides a basis for a conviction of the appellant on the sexual assault charge.

[6] It is unclear from the trial judge’s reasons what findings in respect of sexual acts other than fellatio the trial judge made against the appellant. The trial judge’s reasons for conviction are internally inconsistent and his reasons for sentence contain no insight as to the factual basis upon which the trial judge imposed a sentence totalling four years and seven months.

[7] We would uphold the conviction, but on the basis that the Crown had proved beyond a reasonable doubt the single act of fellatio admitted to by the appellant in his own testimony. We do so on the basis that this record permits us to totally reject the appellant’s innocent explanation for that act. Accordingly, the appeal from conviction is dismissed.

[8] With respect to the sentence appeal, we proceed on the basis that the appellant was convicted of a sexual assault based on the single act of fellatio. No deference is owed to the trial judge’s sentence as we have no way of knowing the factual basis upon which he proceeded in imposing sentence.

[9] Even though the crime involved only a single act of sexual misconduct, it is still a very serious offence. The appellant was in a position of trust. The complainant was very young and because of her troubled home life, particularly vulnerable. A significant period of incarceration was called for. The appellant served the equivalent of seven months pre-sentence custody. Having regard to that seven months, we are satisfied that an additional sentence of 15 months is appropriate. We would allow the appeal from sentence and vary the sentence imposed to 15 months.

“R.R. McMurtry C.J.O.”

“Doherty J.A.”

“E.A. Cronk J.A.”