CITATION: R. v. Stairs, 2007 ONCA 464

DATE: 20070626

DOCKET: C44871

COURT OF APPEAL FOR ONTARIO

ARMSTRONG, JURIANSZ and LaFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

CHRISTOPHER STAIRS

Appellant

Crystal Tomusiak for the appellant

Laura Hodgson for the respondent

Heard: June 20, 2007

On appeal from the judgment of Justice Charles H. Vaillancourt of the Ontario Court of Justice dated May 10, 2005.

LaFORME J.A.:

INTRODUCTION

[1] The 20 year old complainant and the 25 year old appellant met at a dance club in August 2004. By September the complainant was staying at the appellant’s apartment most nights. On all accounts there was fairly extensive drug and alcohol consumption by both parties on a regular basis.

[2] Events occurred on October 5 and 20 and on November 5 and 6, 2004 that resulted in the appellant being charged with and tried for the offences of assault, mischief, sexual assault, unlawful confinement and assault with a weapon.

[3] After a six-day trial the appellant was convicted of each of the offences and sentenced to two years less one day of imprisonment and three years probation. He appeals his convictions.

ISSUES

[4] The appellant submits that the trial judge erred in three ways. First, he says the trial judge misapplied the reasonable doubt standard. Primarily he argues that the trial judge did not consider whether the appellant’s evidence raised a reasonable doubt pursuant to R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).

[5] Second, he contends that the trial judge erroneously allowed and misapplied evidence of the appellant’s bad character. That is, he says that the appellant was not responsible for putting his character in issue and that he ought not to have been cross-examined on the issue of propensity. Moreover, he says that the trial judge was in error in relying upon this evidence in convicting him.

[6] Third, he argues that the trial judge erred in utilizing the appellant’s failure to plead guilty on one charge in assessing his credibility on others.

[7] I disagree that the trial judge erred in any of the three ways submitted by the appellant.

DISCUSSION

[8] This was essentially a sexual assault trial that included other incidents of assault, assault with a weapon, unlawful confinement, and mischief. The position of the defence advanced at trial was that the complainant was jealous and was fabricating the allegations because the appellant had rejected her. The appellant called several witnesses and testified in his defence, and credibility — as the trial judge noted — was indeed what this case turned on.

[9] The appellant placed particular emphasis on the second ground of appeal, namely, the appellant’s character evidence. Accordingly, this will be addressed first.

[10] The impugned evidence of the appellant’s bad character flowed from references to a previous pre-sentence report and a probation report, each in connection with the appellant. These reports referenced prior drug use and anger issues of the appellant as well as references to his negative responses to authority. Both the appellant’s mother — who testified first — and the appellant were cross-examined on these aspects of the reports.

[11] In our view, the appellant’s character on the issues of drug use, alcohol consumption and anger were squarely in issue in the context of this trial. Indeed, defence counsel introduced further aspects of these issues in her examination in chief of defence witnesses. Thus, while I agree that the Crown attorney at trial exceeded the bounds of what was appropriate in her cross-examination, I do not accept that the extent to which she did so occasioned any prejudice to the appellant’s right to a fair trial.

[12] Cross-examination of the appellant’s mother on the appellant’s prior conduct was, among other things, directly relevant to her credibility. Her testimony at trial was to minimize the appellant’s drug use, anger issues and her knowledge of them. Cross-examination therefore was relevant to her credibility and the ultimate reliability of her testimony. The appellant testified in chief and was effectively asserting his defence that he was not the type of person who was likely to have committed these offences, but that the complainant was a jealous person likely to fabricate because she had been rejected by the appellant.

[13] In the context of this case — which involved the relationship of the appellant and complainant that included their extensive drug and alcohol consumption, their numerous arguments about each other’s infidelity, and his criminal record involving numerous violent offences — the matters referenced in the prior pre-sentence and probation reports was hardly noteworthy. Moreover, and significantly, I cannot find anything in the trial judge’s reasons, or elsewhere, to suggest he engaged in any improper propensity reasoning.

[14] Finally on this issue, I note that at no point did defence counsel object to the extent and manner of the Crown attorney’s cross-examination. And, while this is not fatal to an appeal on this issue, it is nevertheless a factor which this court can consider.

[15] It is for these reasons that I reach the conclusion that any errors, such as there may have been in connection with this issue, do not impact upon the fairness of the trial.

[16] Regarding reasonable doubt and the application of W.(D.), this court has repeatedly said that a trial judge sitting alone does not have to expressly refer to W.(D.). Furthermore, it has also been repeatedly said that a trial judge does not have to consider the evidence in any particular fashion or fully articulate his or her analysis in an exhaustive fashion. What is required is that, after reading the reasons as a whole, this court is able to conclude that the trial judge understood and applied all three branches of the analysis prescribed by W.(D.). In my view, the trial judge’s reasons in this case reflect just such an analysis.

[17] The error in approaching the evidence as a credibility contest essentially lies in convicting the appellant on the basis of preferring the evidence of the complainant over that of the appellant without considering if a reasonable doubt as to guilt still remains. The trial judge made it abundantly clear throughout his reasons that the evidence must convince him beyond a reasonable doubt. It was clear that the defence evidence, including that of the appellant, did not raise a reasonable doubt.

[18] In respect of the third ground of appeal, it is true that the trial judge did make comments regarding why, in light of the appellant’s admissions in evidence, he did not plead guilty to the mischief charge. I note first that his trial counsel in closing submissions suggested that she would have preferred that he admit this at the beginning of the trial, but that some of the facts were in dispute. Thus, the trial judge’s reference appears to be nothing more than a comment in connection with this submission. Most importantly however, after reading the trial judge’s reasons as a whole, I do not view his comments as being relied upon to negatively affect the appellant’s credibility.

[19] Finally, I do not agree that any of the convictions should be stayed on the basis of R. v. Kienapple (1975), 15 C.C.C. (3d) 524 (S.C.C.). Each of the offences surrounding the sexual assault were discrete acts and not incidental to the sexual assault.

DISPOSITION

[20] For all of these reasons I would dismiss the appeal.

RELEASED:

“RPA” “H.S. LaForme J.A.”

“JUN 26 2007” “I agree Robert P. Armstrong J.A.”

“I agree R.G. Juriansz J.A.”