Court File and Parties

CITATION: R. v. Denholm, 2008 ONCA 499

DATE: 20080623

DOCKET: C46613

COURT OF APPEAL FOR ONTARIO

LASKIN, ROULEAU and EPSTEIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

JOHN WILLIAM DENHOLM

Appellant

Appellant appearing in person with assistance from Richard Litkowski, duty counsel

Karen Shai for the respondent

Heard: June 17, 2008

On appeal from the conviction and sentence of Justice C.N. Herold of the Superior Court of Justice, dated November 17, 2006 and December 21, 2006, respectively.

Reasons for Decision

THE COURT:

[1] The appellant was convicted of sexual assault and sentenced to five years incarceration, minus fourteen months pre-sentence custody. He appeals his conviction on the basis that the trial judge:

(a) subjected the appellant’s evidence to a different level of scrutiny from that of the complainant;

(b) erred in finding the appellant’s testimony internally inconsistent;

(c) made gratuitous comments to the complainant, which suggested the trial judge had closed his mind to the issue of the complainant’s credibility; and

(d) interfered with counsel for the appellant’s cross-examination in relation to information contained in a third party record.

[2] As well, the appellant seeks leave to appeal his sentence on the basis that the sentence was unduly harsh and excessive.

[3] In brief, the conduct in question is as follows.

[4] Between February 1999 and September 2000, the appellant was living in a room at the Rockwood Hotel. The complainant and other young teenage boys would periodically go to the appellant’s room in search of marijuana. On one such occasion, the complainant went to the appellant’s room alone. The two drank some beer and watched TV. The appellant then gave the complainant some type of pill, a drug that made him “sleepy and numb”. After the drug took effect, the appellant engaged in non-consensual sex with the complainant: he performed fellatio on the complainant, which was followed by anal intercourse.

[5] The first three issues raised on appeal can be dealt with together.

[6] We do not accept the argument that the trial judge scrutinized the appellant’s evidence differently from that of the complainant. In his detailed reasons, the trial judge cited R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and pointed out the strengths and weaknesses in the testimony of each of these two key witnesses. One of the problems in the appellant’s evidence that the trial judge noted was that it was internally inconsistent. The evidence supports this conclusion. For example, the appellant provided differing versions of the number of times the complainant visited his room and the circumstances surrounding those visits.

[7] Counsel for the appellant also cites a gratuitous comment made by the trial judge to support his claim of different levels of evidentiary scrutiny. Specifically, he cites an exchange after the complainant had testified where the trial judge counselled the complainant not to blame himself for what may have happened or what he perceived to have happened. While counsel did not argue that this comment rose to the level of bias, he suggested that it should cause this court considerable concern.

[8] While it is clear the trial judge was simply trying to show compassion toward the complainant after a particularly difficult part of his testimony, it would have been preferable had he resisted expressing his sentiments. That said, the trial judge’s reasons demonstrate that he was aware of the issues in contention and that this statement was not relevant to his determination. The trial judge correctly understood that the case turned not on the complainant’s credibility but on the reliability of his evidence. The fact that the complainant believed the appellant had sexually assaulted him was not the issue. The issue was whether this belief was grounded in actual experience. Viewed in this context, the judge’s comments do not indicate that he prejudged the case and does not constitute reversible error. We would also note that defence counsel did not comment on or object to the trial judge’s remarks at trial.

[9] With respect to the cross-examination on the statement contained in the third party record, we agree with the Crown that the area of cross-examination upon which the defence was attempting to embark was not proper as no evidentiary foundation had been laid.

[10] The circumstances surrounding the offence were serious – the appellant used drugs to lure the young complainant into his lair, where he then plied him with other drugs to facilitate a violent and degrading assault. We see no error in the sentence imposed by the trial judge.

[11] Accordingly, we grant leave to appeal the sentence, but dismiss both the conviction and sentence appeals.

“John Laskin J.A.”

“Paul Rouleau J.A.”

“G. Epstein J.A.”