R. v. Cresswell, 2009 ONCA 95

DATE: 20090130

DOCKET: C46887

COURT OF APPEAL FOR ONTARIO

Sharpe, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Kenneth Cresswell

Appellant

Alan D. Gold and Vanessa Arsenault, for the appellant

Frank Au, for the respondent

Heard: January 29, 2009

On appeal from the judgment of Justice R. MacKinnon of the Superior Court of Justice, dated December 14, 2006.

By the Court:

[1] The appellant was convicted of five counts of indecent assault and one count of sexual assault after a trial before a superior court judge sitting without a jury. The offences were committed from 1974 to 1983 and all involved adolescent male victims. The appellant was given a global sentence of 9.5 years. He appeals the convictions and seeks leave to appeal the sentence.

CONVICTION APPEAL

(a) Similar Fact Evidence

[2] The appellant submits that the trial judge erred by ruling that the evidence on each count was admissible as similar fact evidence on all other counts. The appellant argues that the similarities identified by the trial judge reflected only generic details that one might expect to see in all types of sexual offences and that the similar fact ruling reveals an error in principle sufficient to justify appellate intervention.

[3] We do not accept this submission.

[4] The trial judge applied the correct legal test for the admissibility of similar fact evidence as mandated by R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[5] In his ruling, the trial judge identified the following elements in the evidence that, in his view, rendered the evidence on each count admissible on all other counts:

• proximity in time – the appellant engaged in sexual contact with one or more complainant over a 10 year period with no gap;
• the sexual acts were similar in their detail and all involved the abuse of young males starting at age 14 or less;
• there were a large number of incidents sufficient to support a finding of situation-specific behaviour;
• the similarities established a modus operandi of grooming and creating surprise sexual opportunities to molest young males:
  • all five complainants participated in weekend visits to the appellant’s farm and four of the five were sexually assaulted there;
  • in each of the five cases, the appellant gained the trust of the complainant’s parents, or, through his Big Brother connections, arranged to have the boys entrusted to his care overnight;
  • all five complainants were assaulted late at night while sleeping;
  • there was little or no discussion between the appellant and the complainants before, after or during the sexual acts.

[6] The trial judge considered the possibility of collusion between the complainants and found that while there was evidence of opportunity for collusion, there was no evidence to indicate that there had in fact been any collusion.

[7] It is well-established that a similar fact ruling is entitled to a high degree of deference and that an appellate court will not intervene with the trial judge’s ruling unless the trial judge’s analysis is “unreasonable, or is undermined by…legal error or misapprehension of material evidence”: R. v. James (2006), 2006 CanLII 33664 (ON CA), 213 C.C.C. (3d) 235 (Ont. C.A.) at para. 33; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73. We see no such legal error or misapprehension of material evidence in this case.

[8] In our view, it was open to the trial judge to conclude that these similarities went beyond the generic similarities one might expect to find in relation to any sexual offence. It was also open to him to conclude that the fact that some of the complainants alleged a single incident of abuse while others alleged repeated abuse did not make a material difference given the number of features common to each allegation.

[9] We note as well that Handy states that admissibility is conditioned by the issue to which the evidence is directed. Here, the evidence went not to identity, where distinctive features amounting to a “signature” may be required, but rather to the actus reus, where less cogent similarities may render the evidence admissible.

[10] Finally, we observe that this was a judge alone trial on a multi-count indictment. There was no severance application and it was inevitable that the judge deciding the case would hear all of the evidence. While this, of course, does not by itself render the evidence admissible across all counts, it significantly reduces the risk of prejudice. Moreover, in his reasons, the trial judge properly identified the permitted use of similar fact evidence and cautioned himself against prohibited lines of reasoning.

[11] Accordingly, we would not give effect to this ground of appeal.

(b) Credibility findings

[12] The appellant submits that the trial judge failed to provide adequate reasons for rejecting the appellant’s evidence as well as the evidence of the appellant’s father. The trial judge relied on the fact that the appellant had deliberately lied regarding theft allegations against one of the complainants as his primary reason for rejecting the appellant’s evidence. In oral argument before us, particular emphasis was placed on the trial judge’s rejection of the father’s evidence because his account of a meeting involving him, the appellant and one of the complainants regarding theft allegations was “inconsistent with the proven facts and with the evidence of his own son”. The father was not specifically cross-examined on that evidence.

[13] While the failure to cross-examine the father on this point certainly raises an issue of fairness, it remains the case that the father’s evidence on this point was inconsistent with that of the appellant and with the other evidence at trial. In our view, there was an evidentiary foundation for the trial judge’s findings that the appellant’s father had not told the truth regarding the theft allegations and that, in general terms, he had “shaded the facts in an attempt to bolster his son’s case.”

[14] Moreover, credibility findings are often difficult to explain and are the paradigm case for deference. The Supreme Court of Canada has directed that intervention by appellate courts will be “rare” and that reasons for credibility findings need not consider or answer each and every argument or each and every piece of evidence: R. v. R.E.M., 2008 SCC 51.

[15] When read as a whole, we are not persuaded that the trial judge’s reasons for his credibility findings reveal any deficiency that would warrant or justify appellate intervention.

SENTENCE APPEAL

[16] The appellant raises, for the first time in oral argument, the submission that the trial judge miscalculated the sentence he had imposed. The trial judge first sentenced the appellant to concurrent terms of eight years on counts one, two, and five. He then said the following with respect to the remaining counts:

In addition, sir, you are sentenced on each of counts three and four to six months in jail consecutive to each other and consecutive to the sentence on count one… with respect to count six… you are sentenced to six months in jail consecutive to the sentence in count one. The global sentence then on all six counts is 9 1/2 years.” (Emphasis added).

[17] The appellant submits that, as the six-month sentence in relation to count six was specified as being only consecutive to the sentence on count one, it must run concurrent with respect to the six months imposed on the other counts.

[18] We disagree. There was no reason for the trial judge to distinguish or to impose a different sentence on count six than on counts three and four. In our view, it is apparent that the trial judge intended to impose a global sentence of 9 1/2 years and that his failure to state that the sentence on count six was to run consecutively to the sentences imposed on counts three and four was merely a slip.

[19] Finally, the appellant submits that the sentence lies outside the accepted range. Again, we are unable to agree with this submission. The appellant, in a position of trust, sexually abused five adolescent males over a period of 10 years. The acts of abuse included forced anal intercourse. The sexual assaults were regular and persistent in relation to two victims. This brings the sentence within the range identified in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (Ont. C.A.), at para. 44.

CONCLUSION

[20] Accordingly, the conviction appeal is dismissed, leave to appeal sentence is granted but the sentence appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“David Watt J.A.”

RELEASED: January 30, 2009