DATE: 20060112

DOCKET: C42144

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – G., GORDON A. (Appellant)

BEFORE:

DOHERTY, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Joseph Wilkinson

for the appellant

Alison Wheeler

for the respondent

HEARD:

January 9, 2006

On appeal from the conviction by Justice Anne Marie Molloy of the Superior Court of Justice dated January 26, 2004, and the sentence imposed on March 12, 2004.

E N D O R S E M E N T

[1] The appellant was tried before a jury on three counts of sexual assault and three counts of sexual touching with respect to his adopted son and one count of sexual assault and one count of sexual touching involving his nephew by adoption. The jury acquitted the appellant on two of the counts involving his son, but convicted on all remaining counts. Three of the six counts on which the appellant was found guilty were stayed pursuant to R. v. Kienapple. The appellant was sentenced to four and one half years imprisonment with respect to the offences committed against his son and one year consecutive with respect to the offence committed against his nephew. He appeals both conviction and sentence.

Conviction Appeal

(4) Charter s. 11(b)

[2] The appellant submits that the trial judge erred in refusing to stay the charges on the ground of unreasonable delay pursuant to s. 11(b) of the Charter. The delay of 26 months in bringing this case to trial was a clearly matter calling for close scrutiny. However, we see no error on the part of the trial judge in concluding that the appellant had failed to establish a violation of his s. 11(b) right.

[3] The trial judge counted 3 months and 1 week intake as neutral, attributed 3 months to defence adjournment requests and 18 months and two weeks to Crown or institutional delay.

[4] The appellant submits that the trial judge made two errors:

(4) finding that a 2 month delay to complete the preliminary hearing “cut both ways” and should not be attributed to the Crown or to institutional delay, and

(2) over-emphasizing the public interest is seeing the case go to trial.

[5] A date set that had been set for over one year for the preliminary hearing was lost when, days before the preliminary hearing was to commence, the appellant sought an adjournment due to a change of counsel. A new date (a little over one month later) was found but the preliminary hearing could not be completed on that day and the contested two-month delay ensued.

[6] We do not agree with the submission that the trial judge erred if failing to attribute the entire two-month period to the Crown or to institutional delay. The original date was lost because of the appellant’s adjournment request and it was open to the trial judge to conclude that “one can say that this is not the fault of the system but rather the system bending over backwards to accommodate an accused who has requested an adjournment, and trying to wedge, now, the time for a one-day pre-trial into little bits of court space here, there, and where it could be accomplished.”

[7] We do not agree that the trial judge over emphasized society’s interest in having these charges tried or allowed the public interest to, in effect, trump the appellant’s s. 11(b) Charter right. The trial judge concluded, quite properly in our view, that this was a borderline case. The delay was beyond the norm, but certainly not extreme. The appellant had demonstrated some prejudice, but the prejudice was far from overwhelming. As we read her reasons, she did nothing more that consider the serious nature of the charges and the importance to the public and the vulnerable victims in having them tried as matters that informed the court’s consideration of the enumerated factors. We would not give effect to this ground of appeal.

(2) Crown’s cross-examination of the appellant

(4) Sexual orientation

[8] The crown was entitled to cross-examine the appellant as to the cause of the breakdown of his marriage and the circumstances that led the complainant’s mother to allow the complainant to live with the appellant. The question of the appellant’s sexual orientation was relevant to the circumstances surrounding the break-up of his marriage and therefore not forbidden ground for purposes of cross-examination. Even if the cross-examination on this score may have gone farther than it should have, there was no motion for a mistrial and the trial judge gave a clear limiting instruction to the jury that the appellant’s sexual orientation was irrelevant and that no inference of guilt could be drawn against him on that count.

(ii) Complainant’s truthfulness

[9] The trial crown strayed into forbidden ground by cross-examining the appellant as to the complainant’s truthfulness. While this might have been justified the first time as it arose in the context of the appellant’s assertion that he had disciplined the complainant, the questions were repeated and, of greater concern, used in the Crown’s closing address to the jury. However, we are not persuaded this could be fairly said to have undermined the fairness of the trial. The cross-examination on this point was short and the comment in the closing address was limited to one brief mention There was no objection by trial counsel. This was not a case where the appellant was asked to explain why the complainant would lie. Accordingly, we would not give effect to this ground of appeal.

(3) Adequacy of the jury charge in relating the evidence to the law and outlining the position of the defence.

[10] We see no merit to this ground of appeal. The trial judge carefully and fairly reviewed the evidence and the positions of the parties on all crucial issues.

(4) Unreasonable verdict

[11] We see no merit to the submission that the verdict in relation to the appellant’s nephew was unreasonable. The appellant and the complainant gave radically different versions of how and why the appellant touched the complainant. It was open, on the evidence, for the jury to convict on the basis of the complainant’s version.

Sentence Appeal

[12] We do not agree that the trial judge erred by imposing a sentence of four years and six months with respect to offences committed against the appellant’s son. The trial judge’s comment that the appellant had failed to show remorse does not support the argument that she improperly treated the appellant’s not guilty plea as an aggravating factor. Nor do we accept the submission that she improperly ignored mitigating factors or used the appellant’s unresolved issues surrounding his sexual orientation as an aggravating factor.

[13] A sentence of four years and six months was not manifestly unfit. The assaults against the appellant’s son continued over many years. These assaults progressed in gravity from fondling to mutual masturbation and fellatio, involved a serious abuse of parental authority and had a serious impact upon the victim. We agree with the respondent that they fell within the 3 to 5 year range identified in R. v. B.(J.) (1990), 36 O.A.C. 307 (C.A.).

[14] We do not agree, however, that an additional sentence of one year can be justified with respect to the assault involving the appellant’s nephew. The assault against the nephew consisted of a single incident of touching the victim’s leg over a sheet and over the victim’s pajamas.

[15] In our view, the sentence of one year for this offence is manifestly unfit (1) given the nature of this assault and (2) in view of the totality of the sentence. A sentence of four months for this offence is appropriate. This will result in a total sentence of 4 years and ten months, at the top end, but still within, the three to five year range.

Conclusion

[16] Accordingly, the appeal against conviction is dismissed, but leave to appeal sentence is granted and the appeal against sentence is allowed by reducing the sentence on count 7 is from one year consecutive to four months consecutive

Signed: “Doherty J.A”

“Robert Sharpe J.A.”

“R. Juriansz J.A.”