COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Curto, 2008 ONCA 161

DATE: 20080306

DOCKET: C45452

LASKIN, ROSENBERG and MacPHERSON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

WALTER CURTO

Applicant/Appellant

Catriona Verner and Victor Giourgas for the appellant

Susan Ficek for the respondent

Heard: December 6, 2007

On appeal from the conviction entered by Justice Randall S. Echlin of the Superior Court of Justice dated November 30, 2005 and the sentence imposed on December 15, 2005.

ROSENBERG J.A.:

[1] The appellant appeals his conviction and sentence by Echlin J. for sexual assault. This is a historical sexual assault. The complainant testified that approximately seventeen or eighteen years before the trial, the appellant, then her employer, came to her apartment late in the evening and raped her. The appellant admitted to having sexual intercourse with the complainant on one occasion in her apartment, but claimed that it was consensual. A great deal of evidence was adduced at trial about the statements and conduct of the complainant both before the incident and in the years after. This evidence was adduced under the general rubric of narrative. The principal ground of appeal concerns the use the trial judge made of this evidence in concluding that the complainant’s account was credible and reliable. The appellant also raises several other concerns about the trial judge’s reasons and seeks to introduce fresh evidence concerning statements made by the complainant after trial.

[2] For the following reasons, I would not admit the fresh evidence and would dismiss the appeal from conviction. While I would grant leave to appeal sentence, I would dismiss the sentence appeal.

THE FACTS

The Crown and Defence Theories

[3] At first blush, much of the evidence adduced at trial seems to be of only tenuous relevance. It relates to the complainant’s conduct and view of herself both before and after the alleged assault. However, the relevance of this evidence becomes clear in light of the positions taken by the parties, especially the position taken by the defence. The complainant presented herself as a naïve woman who was saving herself for marriage and who would not have engaged in sexual intercourse outside of marriage. She claimed that as a result of the rape, her character completely changed: she went from being outgoing and friendly to being withdrawn, drinking to excess and using drugs. She also testified that she suffered a miscarriage three to four months after the assault as a result of being impregnated by the appellant.

[4] The defence portrayed the complainant as a very different person. The appellant testified that she regularly used drugs, and even supplied him with drugs. He stated that they regularly engaged in affectionate activity, short of intercourse, and used drugs and drank during working hours and afterwards. After what he said was a consensual act of intercourse, he claims that the complainant tried to engage him in a serious relationship. He refused, which he says explains her character change. When she later had a miscarriage and ensuing health problems, she came to view the consensual encounter as a sexual assault.

The Events Leading Up to the Alleged Assault and the Immediate Aftermath

(a) Testimony of the Complainant and D.S.

[5] At the time of the offence, the complainant was twenty-seven or twenty-eight years old. She had emigrated from Ireland without any other family and described herself as naïve and a good girl as a result of her convent schooling. She had trained in Ireland as a hairstylist and she found a job in Toronto working for the appellant at his salon. At the time, she was in a long-term relationship with D.S., although both parties described it as somewhat “on-again/off-again.” The complainant testified that she was a virgin and that while she and D.S. were intimate, they had never engaged in sexual intercourse. She was also adamant that D.S. had never stayed over at her apartment. Although D.S. confirmed that they had never engaged in sexual intercourse, he testified that he did stay over at her apartment over a dozen times.

[6] The complainant conceded that she was flirtatious with the appellant but said that she rebuffed some of his more aggressive advances, such as his attempts to hug her. She denied being intimate with the appellant and essentially denied that she had used drugs before the assault. I say “essentially” because in cross-examination she appeared to admit that she might have used marijuana a “[v]ery little[, t]iny” bit before the incident.

[7] At about 2:00 a.m. one evening in 1987 or 1988, the appellant unexpectedly appeared at her apartment building. The security guard called up to her apartment and said that the appellant did not look okay. The complainant told the guard to let him up. In the meantime, she put on some pants and a shirt. She let him in to her apartment and within minutes the appellant ripped off her clothes and raped her. He spat on her and told her that he knew she was a virgin. The complainant went out to the balcony. The appellant followed her out, put his arms around her and said he was sorry he could not spend the night. He then left.

[8] The complainant was devastated by the attack. She testified that she “went into this sort of warp” and her character changed completely. She did not return to work at the appellant’s salon. She began to drink to excess and use drugs. She became withdrawn and broke off contact with her friends and with D.S. and his family, with whom she had become very close. She did not tell anyone what had happened because she felt she “was dirty”. She testified during her examination-in-chief that she was no longer able to have intimate relationships with men. However, when confronted with some hospital records in cross-examination, she seemed to concede that she did have a sexual relationship with another man after the assault. She also agreed that she would sometimes return to the bar near the appellant’s salon, even though she knew she might run into him there.

[9] Three to four months after the assault, the complainant had a miscarriage at her apartment. She called D.S. and asked him to help her. When he arrived, she told him that she had been raped. It does not seem that she identified the appellant as the perpetrator at that time. D.S. confirmed that he went to the complainant’s apartment and saw the result of the miscarriage. D.S. also testified to the complainant’s change in character, although so many years later he was unable to pinpoint when the change occurred. D.S. was also unsure of when the complainant stopped working at the appellant’s salon. In cross-examination, he testified that he was pretty sure she was still working at the appellant’s salon at the time of the miscarriage. In re-examination, he agreed that he could not say with certainty where she was working at the time.

[10] D.S. continued to see the complainant sporadically, and when she was drunk she would claim that she had been raped. When D.S. pressed her for details, she always refused. D.S. testified about the complainant’s drug use as follows.

Q. Was she much of a smoker, and by that I mean marijuana or hashish, that you knew of?

A. Not that I knew.

(b) Testimony of the Appellant

[11] The appellant was the only defence witness. He testified that within a week of hiring the complainant, the two of them began to regularly drink and smoke drugs during work hours and afterwards. Even though the appellant was in a long-term relationship with another woman, he frequently went out to bars and other places with the complainant. They became intimate with each other, although there was no sexual intercourse. The appellant testified that he enjoyed using marijuana and hashish but was unable to get hashish on his own. The complainant, however, was able to do so and she sold him hashish.

[12] One evening, when his girlfriend was working a night shift, the appellant called the complainant and asked if she had anything to smoke. She said that she did and invited him to her apartment. She gave him the code to get into her building, but the appellant had difficulty using it, so the security guard called up to the complainant’s apartment and accompanied him up. Once in the apartment, the complainant shared her hashish with the appellant and they had several drinks. The appellant said that he wanted to sleep over because he did not want to drive home. The complainant said “okay” and lay down on the bed. The appellant then took his clothes off and they engaged in consensual sexual activity leading to intercourse. They went to sleep together. At about 7:00 a.m. the next morning, the appellant woke up and left, saying he would see the complainant at work. The complainant went to work that day and seemed fine.

[13] That night, the complainant called the appellant at his girlfriend’s house at about 12:30 a.m. and asked if he was coming over. He told her that he could not come over and that she should not telephone him. He said that he was nervous because he wanted to continue the relationship with his girlfriend. He “started to back away” from the complainant, although they continued to smoke and drink together. However, the complainant still tried to be near him and cried, saying that she wanted to be with him. The appellant believed she was in love with him. Some time later, the appellant sold the salon and he did not see the complainant again for some time.

The Events after the Alleged Assault

(a) Testimony of the Appellant

[14] The appellant testified that two months after he sold his salon, he was working in another salon near the complainant’s apartment. The complainant walked by with a man and was smiling, laughing and waving at him. She came into the salon a short time later and told the appellant that she was working at a nearby restaurant.

[15] The next time he saw the complainant was several years later at the Coxwell subway stop. The complainant was getting out of a subway car and the appellant waved at her and called her name, but he was not sure that she heard him.

[16] The appellant’s next encounter with the complainant was about ten years later. He was working at Rico’s of Italy salon when the complainant came in. She saw him and asked if he was Claudio, which was the name the appellant went by. The appellant said yes and she said: “You raped me. You raped me.” He replied, “Are you crazy? I am going to phone the police.” She said, “you’re a fat goof. You’re not worth it.” Rico fired the appellant later that day.

(b) Testimony of the Complainant

[17] The complainant testified that after the alleged assault, she obtained employment at various places including hair salons and restaurants. Some months after the miscarriage, she went to the hospital because she was in considerable pain. The hospital records show this visit was in December 1989. She was diagnosed with endometriosis and fibroids, for which she blamed the appellant because of the miscarriage. In cross-examination, counsel for the appellant led evidence that she had told hospital staff that her pregnancy was the result of a sexual assault. She had also agreed with the suggestion that she believed the appellant had “ruined [her] insides” and that everything that had happened to her subsequent to the assault was the appellant’s fault.

[18] The complainant also testified to having called people she believed were the appellant’s parents and telling them that he had raped her. The timing of these telephone calls was unclear.

[19] The complainant denied seeing and waving at the appellant at the hair salon near her apartment. She stated that the next time she saw the appellant was at Coxwell subway station, several months after the assault. She left the train and saw him on the platform. He called her name, but she ran up the stairs and met her girlfriends. They could see she was upset and she told them “what happened to me”.

[20] The complainant testified that the only other time she saw the appellant was at Rico’s, approximately ten years later. She was with her young daughter and the child’s grandmother and was going for a job interview. When she saw the appellant, she “was freaked” and accused him of raping her. She then told the child’s grandmother what had happened to her. Rico later called to tell her that he had fired the appellant. He offered to give her an interview, and later hired her.

[21] In August 2004, the complainant contacted the police and complained about the sexual assault. She had recently been in a very serious automobile accident that gave her a “death experience” and she then realized that there were things she still had to do. She testified that she did not want someone like the appellant walking around thinking it was okay to rape somebody.

The Appellant’s Statement to the Police

[22] The appellant gave a statement to police in which he denied sexually assaulting the complainant. The Crown did not introduce the statement during its case in chief, but did cross-examine the appellant on parts of it. In particular, the Crown cross-examined the appellant on the following question and answer:

Q. How long were you having an affair with [the complainant]?

A. Couple of years.

[23] The appellant testified that “Something’s wrong” and “Something’s not right” with this part of the statement and that he had no idea where it came from.

THE TRIAL JUDGE’S REASONS

[24] The trial judge dealt first with the appellant’s evidence. He found that it was “patently false” for the following reasons:

• The appellant’s version of events depended on his claim that he went to the complainant’s apartment to smoke hashish. The trial judge accepted the complainant’s evidence as confirmed by D.S. that the complainant did not use drugs before the assault. Therefore, the trial judge rejected the appellant’s claim that he went to the apartment to use drugs.

• It was “odd” that the appellant did not follow up on his threat to call the police after the public humiliation at Rico’s.

• If the encounter was consensual, the sudden stop to what the appellant testified was a regular pattern of intimate contact seemed highly out of the ordinary.

• There was a significant inconsistency in the appellant’s statement to police in that he said that he had a two-year affair with the complainant.

• The appellant had a criminal record including a conviction for a crime of dishonesty, theft.

• The appellant was not responsive to many questions put to him in cross-examination.

• The appellant’s claim that the complainant was fine after the encounter flies in the face of the evidence that the complainant’s behaviour was more erratic after the incident.

[25] The trial judge then turned to the prosecution evidence to determine whether the Crown had proved its case beyond a reasonable doubt. The trial judge found the complainant’s evidence credible and reliable for the following reasons:

• Her actions after the assault were consistent with her version of events in that she did not return to the appellant’s salon and went into a “warp” and resorted to alcohol to deal with her pain.

• She was clear that she did not consent to intercourse as she wished to remain a virgin until marriage.

• “Her spontaneous outburst at Rico’s many years later in which she accused [the appellant] of being a rapist is consistent with her having been sexually assaulted years prior.”

• Her delay in reporting the incident to the police was in keeping with feeling “dirty” and “contaminated”.

• “Her discovery of a dead fetus months later at the time she miscarried and her statement to [D.S.] that she had been raped had been confirmed by him in a highly believable fashion during his cross-examination.”

• The complainant testified that on the night of the encounter the appellant did not look okay and was looking strange.

[26] Accordingly, the trial judge found that the complainant did not consent to sexual intercourse, and that the appellant knew she was not consenting.

THE GROUNDS OF APPEAL FROM CONVICTION

[27] The appellant raises the following grounds of appeal from conviction:

(1) The trial judge erred in relying on prior consistent statements to bolster the complainant’s credibility.

(2) The trial judge misapprehended certain evidence.

(3) The trial judge erred in his approach to the evidence by applying a much stricter standard of proof to the appellant’s evidence than to the complainant’s.

(4) The reasons for judgment were insufficient.

(5) The appellant also seeks to introduce fresh evidence.

Use of Prior Consistent Statements

[28] As I have described above, considerable evidence of the complainant’s conduct after the alleged assault, including statements about the assault, was adduced at trial. There was no objection to the admissibility of any of this evidence, for a very good reason. The defence position depended on the sequence of events, including the various complaints. The appellant adduced evidence of the complainant’s friendly attitude towards him in the months after the encounter. On the defence theory, all this changed when the complainant had to explain the miscarriage to her boyfriend and so she claimed she had been raped. Thereafter, she blamed the appellant for all her medical and other problems and her statements were manifestations of her hatred of the appellant. This explained her decision to go to the police and tainted her evidence.

[29] The appellant submits, however, that the trial judge erred in using the contents of these statements for their truth. The appellant particularly relies on the two passages of the trial judge’s reasons quoted above and which I repeat here for convenience:

Her spontaneous outburst at Rico’s many years later in which she accused [the appellant] of being a rapist is consistent with her having been sexually assaulted years prior.

Her discovery of a dead fetus months later at the time she miscarried and her statement to [D.S.] that she had been raped had been confirmed by him in a highly believable fashion during his cross-examination.

[30] The Crown responds to this ground of appeal by arguing that this evidence was adduced as part of the narrative and that the trial judge did not misuse it. Rather, the trial judge used the complainant’s conduct, as revealed in her statements, as showing consistency with the allegation of assault.

[31] The admissibility of prior consistent statements under the narrative exception to the general exclusionary rule has been discussed in a number of cases, usually in the context of admission of prior statements by child complainants and often in respect of historical assaults. See for example: R. v. Ay (1994), 1994 8749 (BC CA), 93 C.C.C. (3d) 456 (B.C.C.A.); R. v. B. (D.C.) (1994), 1994 6412 (MB CA), 91 C.C.C. (3d) 357 (Man. C.A.)[1]; R. v. C. (G.) (1997), 1997 12449 (ON SC), 8 C.R. (5th) 61 (Ont. S.C.J.); R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.); and R. v. B. (O.) (1995), 1995 NSCA 220, 103 C.C.C. (3d) 531 (N.S.C.A.). To determine whether the trial judge misused the evidence in this case, it is necessary to briefly consider the basis for admitting evidence of prior consistent statements.

[32] As Hill J. explains in R. v. C. (G.) at para. 44, evidence of prior consistent statements by any witness is excluded as a general rule because the evidence is irrelevant and lacking in probative value. The evidence is “self-serving, self-corroborative and superfluous”. Put simply, the fact that a witness has on prior occasions said the same thing does not generally make his or her testimony any more truthful or reliable. However, there are exceptions to the rule against admission of prior consistent statements because in some circumstances, the evidence of prior consistent statements may in fact be probative of some issue in the case. One example is to rebut an allegation of recent fabrication. See R. v. Evans (1993), 1993 102 (SCC), 82 C.C.C. (3d) 338 (S.C.C.).

[33] Another example is what the cases describe as narrative. The narrative exception is, in my view, essentially a convenient label for instances falling outside the traditional exceptions where the fact that the witness has made prior statements about the incident has some probative value. Finlayson J.A. considered the issue in R. v. F. (J.E.) at p. 472 in the context of the evidence of children:

It seems to me that the court should look to narrative as an exception to the rule against the admission of previous consistent statements for a more hopeful approach to this vexing problem of the evidence of children in sexual assault cases. It must be a part of the narrative in the sense that it advances the story from offence to prosecution or explains why so little was done to terminate the abuse or bring the perpetrator to justice. Specifically, it appears to me to be part of the narrative of a complainant's testimony when she recounts the assaults, how they came to be terminated, and how the matter came to the attention of the police. [Emphasis added.]

[34] The admissibility of prior consistent statements as part of the narrative will depend on the circumstances of each case. In R. v. F. (J.E.), Finlayson J.A. stressed at p. 474 that the evidence was admissible only if it was necessary, for example, “to provide chronological cohesion and eliminate gaps”. It will not always be necessary to know why or how the case came to the attention of the police and it will not always be necessary to fill in every gap in the chronology to understand the story and properly assess the witness’s credibility.

[35] The cases make it clear, however, that when prior consistent statements are admitted, the contents of those statements are not admissible for their truth. This limitation on the use of the prior statements helps to balance the probative value and prejudicial effect of the evidence. The probative value lies in the fact that the statement was made. The contents of the statement itself do not add to the probative value because, as I have said, mere repetition of a story on a prior occasion does not generally make the in-court description of the events any more credible or reliable. This limit on the use of prior consistent statements has been applied with particular rigour in jury trials, where it has been held to be reversible error for a trial judge not to warn the jury on the limited use of narrative statements. See R. v. F. (J.E.) at p. 476, R. v. B. (O.) at p. 542, and R. v. Ay at p. 473.

[36] By contrast, in a judge alone trial it can generally be assumed that the trial judge is aware of the limited use of the evidence. The question in this case is whether the trial judge’s reasons disclose that he misused the evidence.

[37] In my view, the two excerpts from the trial judge’s reasons to which objection is taken do not disclose error. While the language used by the trial judge could have been clearer, I am satisfied that he was using this evidence to show the consistency of the complainant’s conduct. That consistency, or lack thereof, had been placed in issue by the defence. The appellant attacked the complainant’s credibility by attempting to show that she was not acting in a manner consistent with someone who had been sexually assaulted. He claimed that she returned to work the following day and that she continued to display friendship for him even after leaving his employment. The complainant contested that version of events and her version was confirmed on the two occasions referred to by the trial judge. The incident at Rico’s was confirmed by the appellant and the miscarriage events were confirmed by D.S. In my view, the trial judge did not fall into the error of using the contents of the complaints as evidence of their truth.

Misapprehension of Evidence

[38] The appellant submits that the trial judge misapprehended several pieces of evidence that he used to support the complainant’s credibility. These were that D.S. did not believe that the complainant used drugs, that the complainant never returned to work at the appellant’s salon after the assault, and the complainant’s description of the appellant’s appearance on the night in question. I will deal with each of these alleged errors in turn.

[39] D.S.’s evidence about the complainant’s drug use is set out above. The appellant submits that the trial judge misapprehended this evidence because D.S. did not say that she did not use drugs, only that she did not use drugs as far as he knew. In my view, the trial judge did not misapprehend this evidence. D.S. was asked whether the complainant used drugs “that [he] knew of”. His answer, “Not that I knew”, was responsive to the question asked. D.S. had a close relationship with the complainant for approximately seven years. It was open to the trial judge to infer that if she had been using drugs during that period, D.S. would have known of it. This would particularly be the case given the picture the appellant painted of the complainant as a chronic user and even a trafficker of hashish and marijuana. Therefore, the trial judge did not misapprehend D.S.’s evidence in supporting the complainant’s credibility.

[40] The submission concerning when the complainant returned to work also turns on D.S.’s evidence. As part of his recital of the character changes in the complainant, the trial judge mentioned that she did not return to the appellant’s salon. The appellant submits that D.S.’s evidence was that he was “pretty sure” she was still working there at the time of the miscarriage. However, as set out above, D.S. in fact significantly qualified his evidence in re-examination, where he agreed that he could not say with certainty where she was working at the time of the miscarriage. When all of his evidence is reviewed, it becomes clear that D.S. had no real recollection of when the complainant worked at various hairdressing salons. Therefore, I am not satisfied that the trial judge misapprehended the evidence in concluding that the complainant did not return to work at the appellant’s salon.

[41] Finally, the appellant submits that the trial judge erred in finding that the complainant testified the appellant “didn’t look okay” on the night in question. The appellant argues that in fact, the complainant testified that it was the security guard at her building who said the appellant did not “look okay”. In my opinion, this does not amount to a misapprehension of the complainant’s evidence. The substance of the complainant’s testimony supports the trial judge’s conclusion that the appellant did not look okay. The complainant also testified that she thought the appellant “was looking strange” and that “something was wrong, because the way his eyes were”. Both of these statements were also relied on by the trial judge in his description of the complainant’s testimony about the appellant’s appearance. Accordingly, I would not give effect to this ground of appeal.

Application of Stricter Standard of Proof to Defence Evidence

[42] The appellant submits that the trial judge was overly critical of the appellant’s testimony while failing to appreciate significant concerns with the complainant’s testimony. These concerns were that D.S. testified that he spent several nights at the complainant’s apartment, contrary to the complainant’s evidence; that she was inconsistent in her testimony about drug use prior to the assault; and that she said she was so traumatized by the assault that she could not have a relationship with a man, but later admitted that she had a sexual relationship with a man when confronted with hospital records.

[43] In my view, these matters do not have the significance the appellant attaches to them. Whether or not D.S. stayed over at the complainant’s apartment was not significant. What was significant was his testimony about his conduct with her, which confirmed that they had not had intercourse and that she did not intend to have intercourse until they were married.

[44] The evidence of drug use was on the whole consistent. At worst, the complainant said she may have used drugs a “[v]ery little[, t]iny” bit before the assault. As discussed above, D.S.’s testimony was also consistent with the complainant’s evidence that she did not use the drugs prior to the assault.

[45] Finally, in my view, the complainant’s evidence about her ability to form relationships after the assault was not seriously inconsistent. The complainant was unable to say when she had relationships with men after the assault. When shown the hospital records, she agreed that she had had a sexual relationship with a man but she testified that she “really wasn’t there”. This is consistent with her testimony that she could not form relationships after the assault. The significance of her change in character was that she, in a sense, disappeared; she no longer associated with her friends or with D.S. and his family, nor was she able to form new relationships.

[46] The appellant also submits that the trial judge erred in relying on questionable evidence to support the complainant’s credibility. He particularly relies upon the trial judge’s reference to the delay in reporting. There are many reasons why a victim of a sexual assault may not immediately complain and no adverse inference should be drawn from the fact of delay alone. See R. v. D. (D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.) at para. 65. I agree with the appellant that the complainant’s delay in complaining to police does not bolster her credibility. However, I am satisfied that the trial judge did not use this evidence in that fashion. His reasons are open to the more sensible conclusion that he was simply satisfied with the complainant’s explanation for the delay.

[47] Finally, the appellant points to a passage from the trial judge's reasons which he says suggests that the trial judge approached the case as a credibility contest. The impugned part of the reasons is as follows:

In the face of dramatically conflicting evidence of an event witnessed by no one other than the two principals, I must make the determination of whether [the complainant] consented to the act of sexual intercourse, and, if not, whether [the appellant] knew that she did not or was honestly mistaken as to her consent.

[48] In isolation, this passage might suggest that the trial judge was proceeding on the basis of which story he preferred. However, the passage must be read with the balance of the reasons and in particular having regard to the trial judge’s express reference to R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). After rejecting the appellant’s evidence, the trial judge did not simply find him guilty. He went on to enunciate the method of approaching evidence set out in W. (D.), explicitly noting that even if he rejected the appellant’s evidence, he could only convict if the remainder of the evidence that he accepted proved the appellant’s guilt beyond a reasonable doubt. The trial judge then explained why he found that the Crown evidence proved the appellant’s guilt beyond a reasonable doubt. I would not give effect to this ground of appeal.

Sufficiency of Reasons

[49] The appellant submits that the trial judge’s reasons were not sufficient and did not comply with the standard set in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.). In my view, the reasons are sufficient. The trial judge expressed in succinct but clear terms why he rejected the appellant’s evidence and accepted the complainant’s evidence. Based on her evidence and the evidence of D.S., which was not challenged by the appellant, the trial judge was satisfied that the Crown’s case was made out beyond a reasonable doubt. The reasons inform the appellant why he was convicted and permit meaningful appellate review.

The Fresh Evidence

[50] The appellant seeks to introduce as fresh evidence a statement made by the complainant after the trial. After the appellant was released on bail pending appeal, a victim/witness support worker contacted the complainant to tell her of the bail order and the conditions. The complainant was upset by this news and according to the worker, she “expressed great concern for her safety and that of her daughter, who [the complainant] said was born as a result of the rape in 1988.” The worker was cross-examined and maintained that she was certain about the conversation. The complainant filed an affidavit denying that she said her daughter was born as a result of the rape. She was not cross-examined.

[51] The appellant submits that the fresh evidence shows that the complainant was prepared to lie to get him back in custody. Further, he points out that this lie was not about some peripheral matter, but relates to the very matter in issue, namely the sexual assault. The appellant argues that accordingly, the proposed evidence would seriously undermine the complainant’s credibility.

[52] In my view, the evidence does not meet the test for admissibility of fresh evidence. One of the criteria of that test is that the fresh evidence is such that if believed it could, when taken together with the rest of the evidence, reasonably be expected to have affected the verdict. In this case, the fresh evidence, if believed, shows the complainant’s continued animosity towards the appellant. But this animosity was palpable at the trial. The complainant made it quite clear that she wanted the appellant sent to jail for the rest of his life. It is obvious that the complainant was under a great deal of stress at the time she spoke to the worker. She had just learned of the appellant’s release and she had not previously been made aware that the appellant was seeking bail. That she blurted out something of this nature given those circumstances would not seriously compromise her credibility. Accordingly, I would reject the application to admit fresh evidence.

THE SENTENCE APPEAL

[53] At the time of sentencing, the appellant was fifty-one years of age. He was thirty-four years of age at the time of the offence and had no criminal record at that time. Since then, he was convicted of possession of a narcotic, refusing to comply with a breath demand and theft under $5,000. He was in a common law relationship at the time of trial. He had a number of health problems including Hepatitis C and cirrhosis of the liver from excessive drinking. He had been a hairdresser since the age of nineteen but had not been working recently due to problems with his knees. He spent five months in pre-trial custody before being released on bail after the preliminary inquiry.

[54] As detailed in her evidence and repeated in the victim impact statement, the offence had a devastating impact on the complainant. Crown counsel sought a sentence in the range of two to four years imprisonment. The defence sought a sentence of one to two years.

[55] The trial judge noted that the appellant did not express remorse or contrition. He held that a penitentiary term was required because of the need for denunciation and general and specific deterrence for “such unlawful and degrading conduct”. The trial judge imposed a sentence of three years and two months after giving ten months credit for pre-trial custody.

[56] The appellant submits that the sentence is outside the range and fails to take into account the historical nature of the offence, that the appellant had not shown himself to be a threat for committing further sexual offences in the ensuing years, that the appellant had no prior criminal record at the time of the offence, and that he had been a productive member of society. The appellant submits that the trial judge gave no consideration to the objectives of rehabilitation and specific deterrence.

[57] In my view, the sentence was not unfit and the trial judge did not make any error in principle. The length of time between the offence and the trial was obvious and was canvassed with counsel during the submissions on sentence. The trial judge specifically referred to the nature of the appellant’s record in his reasons for sentence. In my view, he properly took into account the relevant factors. A sentence of four years imprisonment for an offence of this nature was not outside the range.

[58] As to the submission that the trial judge did not consider rehabilitation and specific deterrence, it was open to the trial judge to consider that denunciation and general deterrence were the paramount considerations given the nature of the offence. Moreover, the issue of rehabilitation was canvassed by counsel during the sentencing submissions and the trial judge referred to specific deterrence in his reasons.

DISPOSITION

[59] Accordingly, I would dismiss the application to admit fresh evidence and the appeal from conviction. I would grant leave to appeal sentence but dismiss the appeal.

Signed: “M. Rosenberg J.A.”

“I agree John Laskin J.A.”

“I agree J. C. MacPherson J.A.”

RELEASED: “JL” March 6, 2008

[^1]: In R. v. B. (D.C.), the court suggested an overhaul of the rule against prior consistent statements in the case of child complainants. That issue does not arise in this case.