Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 2024-11-25 DOCKET: C70541

Trotter, George JJ.A. and Brown J. (ad hoc)

BETWEEN

His Majesty the King Respondent

and

L.B. Appellant

Counsel: Richard Litkowski, for the appellant Eunwoo Lee, for the respondent

Heard and released orally: November 22, 2024

On appeal from the conviction entered by Justice Pamela L. Hebner of the Superior Court of Justice, dated October 14, 2021, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of sexually assaulting a 15-year-old girl. The offence occurred in 2003. The appellant was not charged until 2019. By the time of trial, the complainant was 34 and the appellant was 45.

[2] The complainant was in foster care. She was visiting her mother and her mother’s boyfriend, the appellant. She testified that, one morning after her mother left for work, she awoke to find the appellant on top of her with his penis in her vagina. She told him to stop which he did not do right away. The appellant testified and denied that there was any sexual contact between them.

[3] The appellant submits that the trial judge’s instructions were problematic in two ways. First, the trial judge erred by telling the jury that the complainant’s evidence should be assessed from the perspective of an adolescent witness. This occurred when she was summarizing the Crown’s position, when she said: “Moreover, at the time of the sexual assault, [the complainant] was an adolescent. Her evidence, including any discrepancies, should be considered in that context.”

[4] The appellant says that the trial judge should have corrected this approach because it is inconsistent with R. v. W.(R.), [1992] 2 S.C.R. 122. We do not agree. In that case, the Court did not hold that this approach was limited to minor inconsistencies in a complainant’s evidence.

[5] Nonetheless, the appellant submits that the trial judge was required to give further assistance to the jury in how to properly assess inconsistencies in the complainant’s evidence. We do not agree. The trial judge addressed the proper manner of approaching inconsistencies of a witness’ evidence in her general instructions on credibility. Viewed as a whole, the trial judge’s instructions would not have left the jury with the impression that it could apply a less stringent standard to the evidence of the complainant. This is no doubt why defence counsel raised no objection to the charge. We would not give effect to this ground of appeal.

[6] Second, the appellant submits that the trial judge’s final instructions were unbalanced by virtue of the value-laded language she used to characterize the complainant’s evidence. She said that the complainant’s evidence involved only “minor” discrepancies and that she was a “thoughtful” witness.

[7] We do not accept this submission. Again, this occurred when the trial judge summarized the Crown’s position. This is made particularly clear in the written version of her instructions provided to jury. The comments are made under the bolded heading – “Crown’s Theory of the Case”. The remainder of the trial judge’s instructions were not unbalanced. The failure of defence counsel to object is an important reflection of this fact. We would not give effect to this ground of appeal.

[8] The appeal is dismissed.

“Gary Trotter J.A.”

“J. George J.A.”

“Michael F. Brown J. (ad hoc)”

Publication Ban

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.