DATE: 20061124

DOCKET: C45212

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant(Appellant)) – and ROBERT RYCKMAN (Respondent)

BEFORE:

MOLDAVER, JURIANSZ and ROULEAU JJ.A.

COUNSEL:

Amanda Rubaszek

for the appellant

D. Edwin Boeve

for the respondent

HEARD & ENDORSED:

November 23, 2006

On appeal from the decision of Justice R. Scott of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated March 13, 2006.

A P P E A L B O O K E N D O R S E M E N T

[1] This is a Crown appeal from the decision of the Summary Conviction Appeal Judge ordering a new trial. For reasons that follow, we would allow the appeal and restore the conviction.

[2] To the extent that the Summary Conviction Appeal Judge may have felt that the s. 16 competence inquiry was inadequate, we disagree. While we acknowledge that the inquiry was brief, it showed that the complainant could observe, recollect and communicate and that she understood the difference between the truth and a lie and she confirmed that she would tell the truth. Nothing more was required. In this regard, we note that the defence raised no objection.

[3] On the issue of the medical evidence, the trial judge disclosed a proper understanding of the complainant’s evidence on the issue of penetration. The trial judge found the import of her testimony to be that “the defendant put his private in or near her private”. That finding was fully supported by the evidence and the Summary Conviction Appeal Judge should have deferred to it. Had he done so, he would not have found an inconsistency between the complainant’s evidence and Dr. Boyer’s evidence.

[4] The respondent further submits that the trial judge failed to give adequate reasons for accepting the complainant’s evidence in the face of a number of alleged inconsistencies that he should have, but did not address.

[5] In rejecting this ground, we note that the written submissions to the trial judge, filed on behalf of the respondent, did not focus on these inconsistencies.

[6] The trial judge’s reasons were largely responsive to the issues raised. He gave cogent reasons for rejecting the evidence of the respondent and he explained why it was that he accepted the complainant’s evidence. In particular, he noted that her testimony was “clear and forthcoming”, that her description of what occurred was “in age appropriate language and style” and significantly, that there was “no hint of her having been coached”. This assessment of her credibility, when taken together with her spontaneous and unprompted complaint to her mother, was, in our view, sufficient to explain and justify the trial judge’s willingness to act on her evidence. While it might have been preferable had he addressed some of the alleged inconsistencies, we are not persuaded that his failure to do so was fatal in the circumstances.

[7] Accordingly, leave to appeal is granted, the decision for the Summary Conviction Appeal Judge is set aside and the conviction is resorted.