COURT OF APPEAL FOR ONTARIO

DATE: 20060131

DOCKET: C41799

RE: HER MAJESTY THE QUEEN (Respondent) –and- KASSIM AL MAYAHI (Appellant)

BEFORE: LABROSSE, WEILER AND MACFARLAND JJ.A.

COUNSEL:

Jeanine E. LeRoy for the appellant

Shelley Hallett for the respondent

HEARD AND RELEASED ORALLY: January 18, 2006

On appeal from the judgment of John F. McGarry J. of the Superior Court of Justice, dated October 24, 2003 made at London, Ontario.

E N D O R S E M E N T

[1] The appellant appeals his convictions, by a court composed of a judge and jury, for sexual assault, assault and sexual touching of a ten-year old boy.

[2] The appellant and the complainant went fishing on three occasions. It was alleged that the appellant made the complainant submit to sexual activity on each occasion.

[3] The appellant testified that he had taken the complainant fishing, but denied engaging in any sexual activity with the complainant.

[4] A woman who witnessed a subsequent meeting between the appellant and the complainant became concerned by the exchange between them. Later, the complainant spoke with her and she called the police. She provided the police with the licence number of a vehicle, which led the police to the appellant.

[5] The first ground of appeal deals with the trial judge’s treatment of an unhappy juror, who was dissatisfied with the deliberations in the jury room. It is conceded that no issue can be taken with the trial judge’s inquiry into the problem. He delicately admonished the jury and instructed the jurors to cooperate with each other and respect each other’s views. Defence counsel agreed with the initial questioning of the juror, and did not object to the instruction nor seek a mistrial. There was no indication of any further problems from the jury. In our view, the trial judge properly dealt with this matter and properly allowed the juror to continue. While the trial judge told the jury that he would check with them in thirty minutes to see how their deliberations were progressing, we do not think that there was any appearance of trial unfairness when he did not do so. We would not give effect to this ground of appeal.

[6] The second ground of appeal relates to the trial judge’s instruction on how to assess the credibility of the child complainant. It is submitted that the trial judge erred in telling the jury it could apply a different and reduced standard when dealing with a child. As stated above, the complainant was ten years old at the time of the event. He was twelve at the time of trial.

[7] In our view, the charge to the jury on this issue essentially accords with the authorities dealing with credibility assessment of child witnesses. The trial judge told the jury to take a common sense approach when dealing with the testimony of young children and not enforce the same exacting standard on them as it does on adults. He also told the jury that “your common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe or rely upon the testimony of that witness” and “you should consider the fact, nature and extent of the differences in deciding their importance to you in deciding whether you believe or will rely upon the witness’s testimony. That is part, all or none.”

[8] We see no error.

[9] The third ground of appeal is that the verdict is unreasonable. Although there were inconsistencies in the evidence given at trial and on other occasions by the complainant, the inconsistencies were clearly brought to the attention of the jury. We do not think that the comments of the trial judge diluted the jury’s requirement to properly assess credibility. At no time did the complainant retreat from the allegations of sexual assault. In our view, the evidence reasonably supported the verdict.

[10] Finally, we note that no objection to the charge, or the issue, was raised at trial.

[11] Accordingly, we would dismiss the appeal.