DATE: 20061214 DOCKET: C42776

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DOUGLAS BROWN (Appellant)

BEFORE:

LABROSSE, WEILER and SHARPE JJ.A.

COUNSEL:

Gregory Lafontaine and Vincenzo Rondinell for the appellant

John McInnes for the respondent

HEARD:

December 11, 2006

On appeal from conviction entered on October 8, 2004, and the sentence imposed on January 7, 2005, by Justice Harry LaForme of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his conviction after a 5-week trial on 8 counts of indecent assault. He was sentenced to a total of 3 years imprisonment. He appeals both his conviction and the sentence imposed.

[2] The sexual assaults are alleged to have occurred between 1975 and 1980 while the appellant was a teacher at Upper Canada College and the 7 complainants were boarders of the school. Six of the complainants were between 10 and 13 years old and one was 17. They testified to numerous incidents, which generally occurred while they were in their beds at night. The appellant testified and denied all of the allegations.

[3] The appeal is based on the following grounds:

a) The trial judge failed to stay the charge on the ground of unreasonable delay;

b) The trial judge erred in admitting similar fact evidence;

c) The trial judge erred in applying the doctrine of reasonable doubt;

d) The trial judge erred in applying an inconsistent scrutiny as to credibility; and

e) The trial judge erred by refusing to impose a conditional sentence.

Counsel presented oral argument on grounds b) and e) and relied on their factums for the other grounds.

a) The trial judge failed to stay the charge on the ground of unreasonable delay

[4] We do not accept that the trial judge replaced the acceptable delay standard with his own 24-month standard. He simply observed that this kind of case would normally and reasonably take about 24 months to proceed from charge through preliminary inquiry through to trial before a judge and jury.

[5] We agree with the trial judge that in the unusual circumstances of this case the time between the swearing of the information and arrest should not have formed part of any reasonable delay. Process could not be executed through reasons beyond the control of the state because of the appellant’s voluntary absence from Canada .

[6] The appellant was directly responsible for a considerable portion of the delay and the appellant demonstrated little concern about the slow pace of the litigation. Delay was responsible for only modest prejudice.

[7] We would not give effect to this ground of appeal.

b) The trial judge erred in admitting similar fact evidence

[8] We do not agree with the submission that the trial judge erred by admitting the similar fact evidence or that he admitted it with respect to identity. Numerous excerpts in the reasons of the trial judge demonstrate that he admitted the similar fact evidence as probative of the truthfulness of the accounts of the complainants in relation to whether the offences occurred and to rebut the defence of innocent association. He considered that the complainants made similar reports and that it was unlikely that the similarity was coincidental.

[9] Collusion was not made an issue by the defence. There was no evidence that any of the complainants gave or received details of the incidents that were included in the accounts. The evidence pointed to nothing more than contact and general discussions and it was limited to only a few of the eight complainants prior to the time the complaints were made to the police. As Binnie J. observed, “the issue is concoction or collaboration not contact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury”: R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at para. 111 (S.C.C.).

[10] It must be remembered that on the issue of similar fact evidence, appellate courts take a “strongly deferential approach to trial judges’ decisions” in relation to relevance of probative value and prejudicial effect: R. v. Harvey (2001), 160 C.C.C. (3d) 52 at para. 44 (Ont. C.A. ).

[11] The trial judge did not err on this issue.

c) & d) The trial judge erred in applying the doctrine of reasonable doubt and he erred in applying an inconsistent scrutiny as to credibility

[12] We note that this case turned on the credibility of the witnesses. With respect to issues c) and d), the trial judge generally accepted the evidence of the complainants, with some exceptions, and he rejected the evidence of the appellant. His reasons for accepting and rejecting the evidence of the witnesses are well founded and deference must be given to his assessment.

[13] We see no merit in these issues.

e) The trial judge erred by refusing to impose a conditional sentence

[14] Given the number of victims and the nature of the offences, the three-year global sentence imposed by the trial judge is not unfit for these offences and this offender. We would not interfere, noting that in the absence of a demonstration of remorse and acceptance of responsibility, the passage of time cannot mitigate in cases of historical sexual abuse: R. v. (M.)W.W. (2006), 205 C.C.C. (3d) 410 at paras. 14-27 (Ont. C.A. ). As we would not interfere with the three-year sentence, there is no basis for a conditional sentence.

[15] The appeal is dismissed.

“J.M. Labrosse J.A.”

“Karen Weiler J.A.”

“Robert Sharpe J.A”