CITATION: R. v. Flynn, 2010 ONCA 424
DATE: 20100610
DOCKET: C47929-C47785
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Laskin and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Appellant on Appeal C47929 Respondent on Appeal C47785
and
Carl J. Flynn
Respondent on Appeal C47929 Appellant on Appeal C47785
Keith E. Wright, for the appellant, Carl J. Flynn
Lisa Joyal, for the respondent, Her Majesty the Queen
Heard: June 3, 2010 On appeal from the conviction entered by Justice Douglas J. A. Rutherford of the Superior Court of Justice dated July 5, 2007, and the sentence imposed on October 11, 2007.
By the Court:
[1] We heard these appeals on June 3, 2010. We dismissed the appeal against conviction and allowed the Crown’s appeal as to sentence with reasons to follow. These are those reasons.
[2] The trial judge convicted the appellant of one count of possession of child pornography. He acquitted the appellant of eight sexual assault related offences and one other child pornography offence.
[3] The appellant raises four grounds of appeal against his conviction.
[4] First, the appellant argues that the trial judge failed to properly apply the burden of proof and, in particular, failed to properly assess the appellant’s evidence denying possession of the 17 offending disks, which contained child pornography.
[5] We do not accept this argument. While the trial judge did not expressly recite the R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, formula in his reasons, a trial judge, sitting alone, is not required to do so: see e.g. R. v. Toy (F.C.) (2009), 2009 ONCA 176, 246 O.A.C. 272 (C.A.), at para. 24. In our view, the trial judge’s reasons showed that he understood that the burden was on the Crown to prove the appellant’s guilt beyond a reasonable doubt, and that he was required to apply that standard to all of the evidence, including the appellant’s.
[6] The trial judge referred to the Supreme Court of Canada’s decision in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. He acquitted the appellant of nine of ten counts in the indictment. Clearly, he understood the need for the Crown to prove the charges beyond a reasonable doubt.
[7] In addressing the charge under appeal, the trial judge considered the direct and circumstantial evidence pointing to a conclusion that the appellant had been in possession of the offending disks. The appellant’s ex-wife’s testimony, if accepted, established the appellant’s possession. The circumstances relating to the use of the appellant’s computer over an extended period of time as well as the address book found in a knapsack with the appellant’s name on it strongly supported the ex-wife’s evidence. The trial judge summarized the appellant’s evidence denying possession. In the end, he considered that there was no rational conclusion from “all of the evidence relating to the offending disks” other than that they were in the appellant’s possession.
[8] It is implicit in the trial judge’s reasons, read as a whole, that he considered the appellant’s evidence and did not find that it raised a reasonable doubt as to the appellant’s guilt. We see no basis to interfere on this ground of appeal.
[9] Next, the appellant argues that the trial judge’s reasons were deficient because he did not set out the reasons why he rejected the appellant’s evidence. While the trial judge did not specifically set out his reasons for disbelieving the appellant, it is clear that his rejection was based on a considered and reasoned acceptance beyond a reasonable doubt of the Crown’s evidence, direct and circumstantial, which established the appellant’s guilt. This line of reasoning was open to the trial judge: see R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at pp. 265-66, leave to appeal to S.C.C. refused, [2007] 1 S.C.R. x.
[10] Third, the appellant submits that the trial judge erred in failing to instruct himself that a Vetrovec warning, or its functional equivalent, was required before accepting the evidence of the appellant’s ex-wife.
[11] We see no error. This was a trial before a judge alone. A trial judge has a discretion to determine whether the evidence of a witness is untrustworthy to such an extent that a Vetrovec type warning is necessary. Not every witness whom an accused alleges to be untruthful is, as a result, an “unsavoury witness” who requires a Vetrovec type of warning. There was nothing to suggest the appellant’s ex-wife was an unsavoury witness.
[12] In this case, the appellant’s ex-wife’s credibility was in issue. Unquestionably, the trial judge was fully aware of the challenge to her evidence and the reasons the appellant argued her evidence should not be accepted. The appellant’s trial counsel did not request that the trial judge give himself a Vetrovec warning. Moreover, neither the Crown nor the trial judge relied solely on the ex-wife’s evidence in linking the appellant to the offence. There was significant circumstantial evidence pointing to a conclusion that the appellant had been in possession of the offending disks. We reject this ground of appeal.
[13] Finally, the appellant argues that the trial judge erred in relying on his own analysis of the handwriting in the address book. This court has held that it is open to a trial judge to make conclusions based on his own opinions as to disputed handwriting. A trier of fact may compare disputed handwriting with admitted or proved handwriting in documents which are properly in evidence: see e.g. R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 34 O.R. (3d) 499 (Ont. C.A.), at pp. 506-07, and R. v. Malvoisin (2006), 36 M.V.R. (5th) 187 (Ont. C.A.).
[14] The above cases point out, however, that there is a potential danger when a trier of fact makes an unassisted handwriting comparison and that, as a result, care needs to be taken. In Abdi, a case involving a trial with a jury, this court observed at p. 508 that it would have been preferable had the trial judge expressed more clearly the cautionary approach to be taken when comparing documents without the benefit of witness testimony.
[15] Similarly, in Malvoisin, a case tried without a jury, this court also observed at para. 4 that it would have been preferable had the trial judge explicitly cautioned himself about the care to be taken when making unassisted handwriting comparisons.
[16] The thrust of the appellant’s argument in the present case is that the trial judge carried out the handwriting comparison between what the appellant accepted was his handwriting and the handwriting in the address book without properly cautioning himself as to the dangers in doing so.
[17] We do not agree. In his reasons, the trial judge said the following:
Ms. Breault [Crown counsel] urged me to find that the known samples of Flynn’s [the appellant’s] handwriting on Exhibit 37 confirmed that the incriminating entries in the address book were written by him. Although I am no expert in handwriting comparison, buoyed by the endorsement in R. v. Malvoisin, I compared the samples and think that with particular reference to such common letters as the Gs and the Js there is little room for reasonable doubt that Carl Flynn wrote the entries at page C-D of the address book. [Citation omitted.]
[18] While perhaps not as clearly set out as one might hope, we are of the view that this passage shows that the trial judge did exercise the caution needed when a trier of fact engages in a handwriting comparison exercise. The trial judge was obviously alive to the fact he was not an expert. That suggests he recognized the need for care. He specifically referred to this court’s decision in Malvoisin, which points out the need for caution. In addition, he appears to have exercised care in comparing specific letters. Thus, we do not agree that the trial judge erred in conducting the exercise.
[19] The significance of the handwriting comparison was apparent during the trial. The appellant’s ex-wife, who had been married to the appellant for eight years, testified that the writing in the address book was his. The appellant testified initially that the writing in the address book was not his and then modified his evidence on cross-examination. In effect, he said he was not sure. The appellant had ample opportunity to cross-examine his ex-wife and call other evidence about the handwriting had he wished to do so.
[20] Importantly, we note that the appellant was put on notice that the trial judge might engage in his own handwriting comparison. In closing submissions, Crown counsel submitted that the trial judge was entitled to make the comparison and invited him to do so. The appellant’s counsel, who made submissions after the Crown, did not object or make any submissions on this point.
[21] In the result, we dismiss the appeal against conviction.
[22] The Crown appeals the sentence, asking this court to include two additional conditions in the probation order imposed on the appellant (the respondent in this appeal). The conditions are as follows:
- The respondent shall not be in a residence with a child under the age of 16 years unless,
a) another adult over the age of 21 years is also present, or
b) a parent of the child, who has been advised of Mr. Flynn’s conviction for possession of child pornography, has consented in writing to Mr. Flynn’s having unsupervised association with the child, and such consent has been delivered to the Probation officer in advance.
- The respondent shall not have a computer except for purposes related to education, employment or seeking employment, and shall not send emails with attachments, except for purposes related to education, employment or seeking employment.
[23] The Crown also requests this court to make an order under s. 490.012(1) of the Criminal Code requiring the appellant to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for a period of 10 years.
[24] The appellant consents to these orders. Accordingly, the Crown’s application for leave to appeal sentence is granted and that appeal is allowed. The sentence is varied as set out in the preceding two paragraphs.
RELEASED: “DOC” “JUN 10 2010”
“D. O’Connor A.C.J.O.”
“John I. Laskin J.A.”
“E.E. Gillese J.A.”