COURT FILE NO.: 08-5064
DATE: 20121204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
B. T.
Appellant
Moiz Karimjee, for the Crown
Michael A. Smith and Richard Morris, for the Appellant
HEARD: November 16, 2012
ON appeal from the convictions entered on December 9, 2009 and the sentence imposed on May 28, 2010 by justice j.d. nadelle of the ontario court of justice
C. McKINNON J.
[1] The appellant was convicted of sexually assaulting M.C. when she was 12 years of age and R.S. when she was 16 years of age. Both complainants were friends of the appellant’s 13 and 16 year old stepdaughters. The incidents took place in the appellant’s swimming pool about a month apart in July and August 2008. The complainants did not know one another.
[2] In the case of M.C., the assaults consisted of touching her vaginal area about five times when throwing her around in the water. On the first four occasions the appellant’s hand was over her bathing suit touching the vaginal area. On the fifth occasion he touched her inside her bathing suit, although there was no digital penetration.
[3] In the case of R.S., the accused picked her up on three occasions and slipped his hands into the sides of her bathing suit top beside her breasts and fondled them. On the third occasion, he also grabbed her hand and placed it on his penis and began to rub it up and down. She told him that she wanted to get out of the pool because she was not feeling well and was dizzy. He kept rubbing her hand against his penis and stated “No, you’re going to help me out.” She exited the pool. A short time later, the appellant approached her in the basement of his home and apologized to her for what had happened in the pool.
[4] One of the defence witnesses was the spouse of the appellant. She testified that the appellant admitted to her that he had apologized to R.S. because he may have accidently touched her. His spouse asked him why he would apologize if he had done nothing wrong. He explained to her that he apologized because he thought he may have hurt her when he slipped going up the ladder in the pool to exit the pool. In his evidence, he appellant denied having this conversation with his wife and further denied that any inappropriate touching took place.
[5] The trial of these offences took six days. The very experienced and learned trial judge reserved judgment for two weeks and gave oral reasons for judgment which comprised just over eight pages of transcript. Following the conviction of the appellant, a Sexual Behaviour Report was ordered from the Royal Ottawa Hospital, together with a pre-sentence report. On the day set for sentencing, May 28, 2010, victim impact statements were filed on behalf of the two complainants and the older complainant’s father. The victim impact statements disclose a profound impact on both complainants. Mr. Smith, counsel for the appellant, requested the opportunity to cross-examine the complainants on their victim impact statements. The learned trial judge declined to permit cross-examination.
[6] The learned trial judge sentenced the appellant to three months in jail on each count to be served consecutively, for a total of six months, together with a two year probation order, including the requirement that he attend for assessment and sign any consent forms required to monitor attendance. The appellant was also placed on the Sexual Offender Registry, required to provide a DNA sample, and was also subjected to an Order pursuant to s. 161 of the Criminal Code to stay away from public parks, swimming pools, and in places where persons under 16 years of age are present or can reasonably be expected to be present. This order was to be effective for a period of five years.
[7] Following his conviction, the appellant spent 25 days in custody prior to being released on bail pending appeal.
[8] Counsel for the appellant advanced five grounds of appeal:
(1) That the learned trial judge erred with respect to his application of the principles annunciated in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742;
(2) That the learned trial judge failed to appreciate the evidence of the witnesses;
(3) That the verdict was unreasonable;
(4) That the learned trial judge erred in refusing to allow counsel for the appellant an opportunity to cross-examine them upon their victim impact statements.
(5) That the learned trial judge erred in failing to impose a conditional sentence upon the appellant.
[9] An application to receive fresh evidence on appeal was brought by the appellant with respect to his medical condition. The evidence of his family doctor, Patrick Barnabé, was admitted on consent. In my view an application for fresh evidence is not required when the evidence relates to the physical condition of an appellant following sentencing by the trial judge. Appellant courts typically hear evidence respecting the progress made by appellants since conviction without the necessity of bringing any application for the admission of fresh evidence. Formal applications for fresh evidence need only be brought where the evidence existed prior to the time of conviction: R. v. Palmer, [1980] S.C.R. 759.
[10] Dr. Barnabé testified that the appellant suffers from high blood pressure, chronic depression, characterised as being moderate to severe, stress, anxiety, morbid obesity and insomnia. The appellant is at high risk of heart attack. He has a Global Assessment Functioning scale of 55, meaning he should not be working, although he is employed as a backhoe operator. He has three prescriptions for drugs to control his high blood pressure, depression and anxiety. Dr. Barnabé testified that while in custody the appellant suffered from a “mental breakdown.” Dr. Barnabé acknowledged in cross-examination that this was told to him by relatives of the appellant who had visited him in the institution. He personally spoke to the appellant while in custody and noted the appellant was in tears. Dr. Barnabé personally attempted to insure that the appropriate medication was given to the appellant while he was in custody, without success. His weight has been creeping up continuously so that he now weighs 366 lbs. which Dr. Barnabé described as being “extremely morbid.” He is at “double or triple” the norm for risk of heart attack. On the morning of the appeal the appellant was excused from court because he was hyperventilating, dizzy, trembling and highly emotional. Dr. Barnabé gave him Xanax tablets to calm him down.
The W.(D.) Analysis, the Appreciation of Evidence and Reasonableness of the Verdict
[11] Counsel for the appellant asserts that the learned trial judge erred with respect to his application of the principles of R. v. W.(D.), by applying an either/or approach to the credibility of the complainants and the appellant, thereby offending the rule in R. v. W.D.S., 1994 76 (SCC), [1994] 3 S.C.R. 521. Specifically, it is submitted that the learned trial judge failed to adequately consider the inconsistencies in their testimony. Further it is submitted that the learned trial judge did not consider the evidence of certain defence witnesses, in particular Mr. K.C., the boyfriend of the elder stepdaughter.
[12] It is conceded by counsel for the Crown that the learned trial judge expressed his reasons for conviction “in brief compass”: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656. Counsel for the appellant has not asserted in their grounds of appeal that the reasons of the trial judge were insufficient for review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. For the purpose of this appeal I shall nonetheless be guided by the rule in Sheppard.
[13] In his reasons for judgment, the learned trial judge instructed himself on the principles of W.(D.). Specifically, he noted the three options before him. First, if he believed the evidence of the appellant, he must acquit him. Second, if he did not believe the testimony of the appellant, but was left with a reasonable doubt, he must acquit. Third, even if he was not left in doubt by the evidence of the appellant, then he must ask himself whether, on the basis of the evidence he did accept, he was convinced beyond a reasonable doubt by that evidence of the guilt of the appellant.
[14] He also instructed himself with respect to the holding in R. v. J.L., 2009 ONCA 788, [2009] O.J. No. 4683, with respect to his freedom to take into account the totality of the appellant’s evidence and noted he was under no obligation in law to make two discrete, distinct and independent assessments of the appellant’s credibility, the first having regard to the evidence as it related to one complainant and the second having regard to the evidence as it related to the other complainant.
[15] The learned trial judge completely disbelieved the evidence of the appellant concerning the sexual touching of the two complainants:
…as it appeared to be all too carefully plotted out and almost to “perfect” for want of a better term. It contained too much detail. The accused could recount every detail concerning all of his movements, both in and out of the pool, on the days of both incidents. He could recall exactly what he said and what others said to him. He could even recall with exactness conversations others in his vicinity had with each other. One wonders why anyone would or could recall with such exactness the events of about one month previous when there was no reason for him to remember them.
The accused’s position is that nothing untoward occurred in early July when he was in the pool with Ms. C. and his stepdaughter R. Yet, when the allegations of a sexual impropriety arose on August 11 or 12, he somehow was able to recount every imaginable detail surrounding his interaction with those in the pool.
The same comments apply to the events of August 11, 2008 and the allegations of sexual assault of Ms. S. The accused was confronted with the allegations on August 12, so it is not unusual that he would have a pretty good memory of what occurred the day before and that reconstructing his movements and recalling conversations would not be as difficult as in the early July incident. However, the August 11 incident, or, more precisely, the accused’s recounting of the events leading up to and post-incident, involved more participants. For example, Mrs. T., both his step-daughters and Pat, Mr. T.’s employee, were all involved in his explanation. In addition to the increased number of people, there were far more incidents to recall. Yet the accused was able to recall with unusual precision the movements of everyone present and all conversations.
I also note that the accused resorted to simply denying inculpatory evidence when it didn’t suit his explanation. I would point to the evidence or R.S., who testified that while she was in a basement room after the sexual assaults, the accused came downstairs and said he wanted to apologize for what happened in the pool. The accused simply denied he made an apology to Ms. S.
Mrs. T. testified as a defence witness. Mrs. T. had found out about the August 11, 2009 incident involving Ms. S. by communication with Ms. S. by MSN on August 12. Mrs. T called the accused on the phone and he said to her he didn’t do anything and began crying. He came home immediately and obviously Mrs. T. and the accused discussed the allegations. Mrs. T. , also on August 12, was told by her daughter R. about the early July and M.C. incident.
The accused during his talk with Mrs. T. said he may have accidently touched R.S. He was asked why he apologized to her if he had done nothing. The accused replied he apologized because he thought he may have hurt her when he slipped going up the ladder in the pool to exit the pool. The accused testified he didn’t recall telling his wife it may have been an accidental touching. He denied apologizing to R.S. in the basement. He also testified he couldn’t recall his wife asking him if he had apologized to R.S. and he testified that he couldn’t recall if he told her; that is, Mrs. T., that he had apologized to R.S.
Thus we have Mr. T., a person who recalls every conceivable detail of what was said to him on an ordinary day about one month previous, yet couldn’t recall the apology portion of the R.S. incident one day later. And by “not recalling the apology portion” I am referring to this conversation with Ms. T. Obviously, an apology to R.S. would, in the circumstances of this case, be highly inculpatory…
[16] Having found the evidence of the appellant incredible, the learned judged then proceeded to instruct himself as follows:
It is still incumbent that the accused’s guilt be proven beyond a reasonable doubt before he can be convicted. The fact that I disbelieve the accused does not end the matter.
Ms. C. at the time of the incident was 12 years of age, almost 13, and in grade 7. She gave her evidence in a very fair and direct manner. There were no embellishments. I found her to be very honest. She was subjected to a vigorous cross-examination by an experienced defence counsel and emerged undamaged. The detailed cross-examination did bring out certain details which Ms. C. did not go into in the video-taped interview with the police on August 13, 2008. She stated she was nervous and didn’t state everything. I don’t find this unusual in a person of that age.
I was impressed by Ms. C.’s fairness to the accused. On the first touch of her vaginal area, she was prepared to consider it may have been an accidental touch. I have no difficulty in accepting Ms. C.’s testimony as credible and reliable.
R.S.’s evidence was also clear, sufficiently detailed, and also given without embellishment. She was 16 at the time of the incident and was poised and articulate in relating the events. Her conduct after the sexual assaults was entirely consistent with the events she related that occurred in the pool. She made herself scarce after leaving the pool, refused the accused’s invitation to stay for supper. She instead had already called her dad to meet her at South Keys Shopping Center. She refused the accused’s offer to drive her to South Keys. Upon arrival at South Keys about 15 minutes later, she immediately told her father what had occurred.
She too came through a brutal cross examination undamaged and with her dignity intact. Defence counsel even went so far as to cross-examine her over a lie she told her father when she was age 10. Perhaps it was indicative of the desperation of the defence position. R.S.’s evidence is totally credible and reliable.
I believe the evidence of M.C. and R.S. in addition to believing the evidence I find their evidence to be reliable.
I have already found the accused’s evidence to lack credibility and to not be believable. The evidence of the accused does not cause me to have a reasonable doubt.
[17] In their factum, counsel for the appellant assert that the learned judge must evaluate not only the honesty or truthfulness of a particular witness but also the reliability of the evidence of a witness, namely the ability to observe, recall and recount events. It is submitted by the appellant that numerous inconsistencies presented by the complainants could not amount to the learned judge’s findings of credibility and reliability: R. v. H.C., [2009] O.J. No. 56 (C.A.). It is asserted that a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible and honest witness may still be unreliable. The appellant submits that the complainants have provided numerous inconsistencies in their testimony and therefore the learned judge erred in considering their testimony to be credible and reliable: R. v. Morrissey, 1995 3498 (ON CA), [1995] 22 O.R. (3d) 514 (C.A.).
[18] Dealing first with the assertion that the learned judge fell into error in his analysis of the evidence as being an either/or situation, I am unable to agree. The trial judge explained why he did not believe the appellant. A review of the testimony given at trial manifestly supports his conclusion. In particular, the apology to R.S., which he admitted to his own wife the very next day, is highly significant evidence upon which the trial judge relied in determining that he was unable to believe the appellant. While the trial judge did not go into detail with respect to some of the inconsistencies of the complainant’s testimony, it is clear from his reasons for judgment that he did consider the inconsistencies and nonetheless believed the complainants. A review of the testimony of the complainants reveals the inconsistencies to be minor. The conclusions of the learned judge respecting the credibility of the complainants is manifestly supported by the trial record.
[19] I see no error in the approach taken by the learned trial judge in his analysis of the credibility of the appellant or that of the complainants. As Doherty J.A. stated in R. v. D.(J.J.R) (1996), 2006 40088 (ON CA), 215 C.C.C (3d) 252 (C.A.) at para. 53:
… An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[20] In R. v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224 at para. 15, Feldman J.A. stated:
…A jury does not consider an accused's version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused's version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused's evidence and the other evidence that favours the accused in the context of all the evidence.
[21] The learned trial judge was clear in his reasons that not only did he disbelieve the accused but also that the evidence of the accused did not raise a reasonable doubt in his mind. He was satisfied beyond a reasonable doubt with respect to the credibility and reliability of the evidence of the complainant. While he did not undertake an analysis that referred to specific contradictions within the evidence, and although such an analysis would have been helpful, in my view the trial judge satisfied the requirements of both Burns and Sheppard. In Burns McLachlin J., speaking for the court at paras. 17 and 18, stated:
Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal…This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points…. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused’s guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict.
This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.[Emphasis added.]
[22] In the case at bar, the learned trial judge did not deal with certain defence evidence, in particular the evidence of K.C. To begin with, K.C. was not a witness to the incident. He knew R.S. and at the time of trial had dropped out of high school, was unemployed, and was dating the elder stepdaughter of the appellant. The appellant had discussed with K.C. the impact that the case was having upon him. In essence, his evidence was that R.S. had previously told him that her father had been assaultive towards her and that she had been sexually abused by a stranger at the time both were attending a party about a year previous to the pool incidents. R.S. denied in cross-examination that she had ever alleged that her father had assaulted her. Her own father testified that he was unaware of any such allegation and that the suggestion by counsel was the first time he had heard of it. With respect to being abused by a stranger, she testified that in fact an ex-boyfriend had abused her at the time of the party. K.C. was unable to tell the court that R.S. had lied.
[23] R.S. was also crossed-examined with respect to an incident when she was 10 years old when she alleged that a friend attempted to stab her. She admitted in cross-examination that she had “over-exaggerated” the incident and that she had lied to her father. Further, she subsequently admitted to him that she had lied, but that in fact her friend had been wielding a knife.
[24] As stated, it would have been helpful had the trial judge referred to this evidence. Nonetheless it is implicit in the trial judge’s reasons that he found these attacks upon her character to have buttressed her credibility rather then undermine it. A complete review of the transcript would suggest that the complainant was forthcoming about these previous incidents which would permit the learned judge to state that “R.S.’s evidence is totally credible and reliable.”
[25] In addition to the fact that the record discloses that the so called contradictions, particularly in relation to the witness R.S., were substantial and should have been considered by the learned trial judge in his reasons for conviction, I would note in passing that the evidence of K.C. dealt with entirely collateral issues, namely whether R.S. had lied in the past. While there is wide latitude permitted on cross-examination, where the cross-examination deals with collateral evidence its relevance might be tenuous.
[26] In appropriate circumstances collateral questioning can be prohibited: see R. v. W. (B.A.), 1992 24 (SCC), [1992] 3 S.C.R. 811. In that case the accused was charged and convicted with a number of sexual assaults on three women who were the daughters of his wife. The assaults were alleged to have occurred over a number of years in the past. The learned trial judge refused to allow the defence to cross-examine one of the complainants on her statements made to the police in which she alleged that the accused’s son and friends had also sexually assaulted her. The defence wished to show she had lied about the allegations. The Court of Appeal for Ontario ruled that the cross-examination ought to have been allowed: R. v. W. (B. A.) (1991), 59 O.A.C 325. The Supreme Court of Canada overruled the Court of Appeal and reaffirmed the correctness of the trial judge’s ruling to prohibit the question. Justice McLaughlin, speaking for the court, stated:
In the absence of an indication that the complainant’s evidence on collateral matters might be false, the claim for its relevance was tenuous. On the other hand its prejudice and its potential to mislead the jurors was significant.
[27] In any event, the complainant R.S. was permitted to be asked the questions which were, in the circumstances of this case, extremely tenuous, particularly in relation to the alleged lie when she was aged 10. As stated earlier, her answers to the alleged lies buttressed her credibility, which is implicit in the conclusions reached by the learned trial judge.
[28] Although not argued, I would also find that the trial judge’s reasons met the test in Sheppard, in which Binnie J. at para 28, discussed the circumstances which could prevent an appeal court from exercising review of a decision in a meaningful way:
Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge’s decision in a satisfactory manner.
[29] It is helpful to recall that the Supreme Court noted, at para. 2, that the trial judge’s the entire judgment in Sheppard consisted of the following words:
Having considered all the testimony in this case and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged.
[30] While the reasons of the learned trial judge in the case at bar were cast “in brief compass,” they are nonetheless sufficient to permit meaningful appellant review. I am satisfied after reviewing the entire trial transcript that there was ample and compelling evidence to support the findings and conclusions of the learned trial judge.
Refusal of the Learned Trial Judge to Permit Counsel for the Appellant an Opportunity to Cross-Examine the Complainants on Their Victim Impact Statements and Resulting Sentence
[31] The transcript of proceedings on the date of sentencing, May 28, 2010 has been referred to previously. I find as a fact that Mr. Smith was denied the opportunity to cross-examine the complainants by the learned trial judge. In so denying the opportunity, the learned trial judge fell into error.
[32] Section 723(1) of the Criminal Code provides that before determining the sentence a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed. Section 724(3) provides that where there is a dispute with respect to any fact that is relevant to the determination of a sentence:
(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a pre-sentence report, has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e) the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence;
(e) The prosecutor must establish by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.
[33] In the case of R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368, it was held that in deciding disputed facts in sentencing, a trial judge should not depart from the traditional criminal standard of proof beyond a reasonable doubt. Gardiner held that sentencing is the critical stage of the criminal process. As Dickson J. stated:
To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden. Crime and punishment are inextricably linked…Both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the learned trial judge in imposing sentence militate in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.
[34] In R. v. V.W., 2008 ONCA 55, 89 O.R. (3d) 323, affirmed by the S.J.C. No. 22, Sharpe J.A. speaking for the court, held at paras. 28 to 31:
…I do not read either Gardiner or s. 724(3) as meaning that an offender has an automatic or open-ended right to insist that victims attend for cross-examination any time the Crown wishes to use a victim impact statement in a sentencing hearing. Nor do I agree that s. 7 of the Charter mandates such a right. Conferring an automatic or unconstrained right to cross-examine would risk undermining the very purpose of victim impact statements, namely, to give victims a voice in the criminal justice process, to provide a way for victims to confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. Conferring an open-ended right to cross-examine might discourage victims from offering such statements and re-victimize those who do. On the other hand, an absolute bar on cross-examination would unduly interfere with offenders’ procedural rights.
It seems to me that the way to reconcile the use of victim impact statements with the procedural rights conferred by s. 7 of the Charter, s. 42(9) of the YCJA and s. 724(3) of the Criminal Code is to impose a threshold “air of reality” burden on the offender to satisfy the sentencing judge that a fact or facts contained in the victim impact statement are disputable and that the request to cross-examine is not “specious or empty”: see Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 198. If there is no factual dispute that meets this low threshold, the protections accorded by s. 724(3) are not triggered and I fail to see how there could be any violation of the appellant’s s. 7 Charter rights.
This analysis suggests that there is a discretion on the part of the sentencing judge to assess the offender's request in the light of the facts that have been proved and the evidence that has been led, whether at the trial or on the sentencing hearing, with a view to achieving a just reconciliation between respecting the procedural rights of the offender and respecting the legitimate role of the victim in the sentencing process. The sentencing judge’s duty to ensure that the offender’s procedural rights are protected entails a discretion to permit cross-examination when satisfied that there is an air of reality to the claim that the facts are in dispute and that the offender's request to cross-examine is not specious or empty.
Although there is little jurisprudence and commentary discussing cross-examination on victim impact statements, the case law and commentary that does exist supports the conclusion that cross-examination may be allowed, but only at the judge’s discretion.
[35] The victim impact statements filed by M.C. and R.S. are compelling. Both speak of being uncomfortable in the company of older men. Both speak of having problems in school as a result of the sexual touching. Both speak of lasting psychological damage. In the case of R.S., the effects have apparently devastated her entire life. She speaks of being unable to go to school where she might meet her former friend, the elder stepdaughter of the appellant. She speaks of losing friends to “rumours and lies”. She speaks of her house phone and cell phone being contacted by blocked numbers and being told that she was lying and destroying lives and that she should “watch her back”. She alleges that these things were being done at the instance of the accused’s elder stepdaughter, her former friend. She has difficulty going swimming. She is unable to trust older men. The stress was so great she was required to see a psychiatrist. She concludes her statement by saying “My life will never be the same. Hopefully I can coast along and get things back to normal one day at a time, but I will never be the same.”
[36] R.S.’s impact statement is buttressed by her own father. He speaks of his depression and shock arising from the sexual assault which required him to take three months leave of absence from work. He is required to take medication. He stated “This is an incident that will impact the rest of our lives.”
[37] At the time of sentence, Mr. Smith and trial judge discussed the victim impact statements. Mr. Smith stated:
…I have read the statements and there were just a few questions that I had with respect to the victim impact statements. Normally I don’t. But I received some information and I do have a few questions for both Ms. S. and Ms. C. I don’t know how much will turn on it at the end of the day. But certainly I have reviewed the statements with my client and what I propose to do is just ask a few questions so Your Honour can get a full flavour of the extent of maybe where these individuals may be at. I am in the court’s hands.
The learned trial judge responded:
I am inclined not to allow it, primarily because of the nature of the cross-examination of Ms. S. the last time. My concern is that it is going to deteriorate into a further examination of her whole life. I am perfectly capable of understanding what should be in a victim impact statement and what should not be and what to place reliance on and what not to place reliance on. [Emphasis added.]
To which Mr. Smith replied:
I have read the statements some time ago and reviewed them last night and the questions or the area that I was really hoping to focus on because especially with Ms. C. there is reference to the impact in terms of dealing with men and the level of comfort. Ms. S.’s statement was certainly a little bit longer, but if Your Honour’s ruling is that you don’t wish for me to cross- examine, that’s fine, I will forge ahead. [Emphasis added.]
[38] I accept Mr. Smith’s submission to me that the moment of sentencing is a critical one in the trial process and that the learned trial judge had signalled clearly that he did not wish to permit cross-examination upon the victim impact statements. With his client’s fate hanging in the balance, he chose to proceed without cross-examining the complainants. In circumstances where the trial judge had characterized Mr. Smith’s cross-examination of R.S. as “brutal”, it is understandable why he did not press the matter further at such a sensitive juncture in the trial. In fairness to Mr. Smith, his cross-examination of R.S. was extremely thorough, and should preferably not have been referred to as “brutal”. In sum, Mr. Smith cannot be faulted for failing to further implore the learned trial judge at that point in the proceedings.
[39] It is also clear that the content of the victim impact statements were at play in the sentence imposed. The learned trial judge stated:
I have read the victim impact statements. I note that these crimes have affected the two young women in a number of ways from the lessening of trust in older men to the awkwardness of going to the same school as the accused’s stepdaughter and then the chance meetings in hallways – that applies to Ms. C. – to R.S.’s statement that this offence has affected her wellbeing, her mental state, her physical state, her social circle, her education and her family, in short, almost all aspects of her life. It is this court’s hope that with professional help that the Crown, the police and the Victim Services has undoubtedly made you aware of and perhaps have already taken advantage of, and with the passage of time, you will be able to put this matter behind you.
That having been said, it should be remembered, as was stated in paragraphs 28-31 of R. and Graham [2008] A.B. P.C. 227, that “in a criminal case, the focus is on the harm done to society.” The harm done to the victim, as expressed in a victim impact statement, puts a human face on the harm to society and provides the Court with a means to gauge the extent of that harm. The victim impact statement is not meant to convert the sentencing process into a vehicle for individual personal redress.
[40] While the learned trial judge effectively commented that he would not place undue reliance upon the victim impact statements, a trial judge nonetheless has a duty to ensure that the procedural rights of an offender are protected and must inquire as to whether there is an air of reality to the claim that facts are in dispute and that the offender’s request to cross-examine is not specious or empty.
[41] On the face of the record, it strikes me that defence counsel might have wished to cross-examine the complainants with respect to whether it was the fact of the sexual assault, or subsequent events not involving the appellant, that gave rise to the serious negative impact upon their lives. In other words, on the face of the record there would appear to be an air of reality to the assertion that there are serious facts in dispute.
[42] In the normal case, cross-examining victims on their impact statements would amount to pure folly and likely prove to be a futile exercise. Impact statements allow victims the opportunity to vent their feelings. It is a cathartic exercise and permits victims an avenue to achieve closure of the crime suffered. Frequently, statements are made that at first blush might seem exaggerated. This is normal. Judges understand the process and regularly factor the unique emotional dynamics of victim impact statements into the sentencing process, remembering that sentencing in the final analysis is not an exercise in revenge.
[43] Nonetheless, in appropriate circumstances, which I presume would be extremely rare, defence counsel might wish to cross-examine victims upon their impact statements. When the right to cross-examine is sought to be exercised, leave must be sought from the trial judge and the basis of the cross-examination explained so that an air of reality is established: in other words, that facts set out in the impact statement are seriously in dispute to the extent that the facts, left unchallenged, might seriously prejudice an accused who has been found guilty. For obvious reasons, such an application should proceed in the absence of the victims whom counsel seeks leave to cross-examine.
[44] In the circumstances of the case at bar, the learned trial judge effectively denied defence counsel the opportunity to establish the basis upon which he wished to cross examine the complainants. In so deciding, he erred. It is impossible to know what the complainants would have answered to the questions that might have been asked of them by defence counsel. This is a purely speculative exercise and incapable of being answered on appeal.
[45] With respect to the sentence imposed by the learned trial judge, it is certainly within the fair range of sentencing for offences of this kind. Counsel for the appellant asserts that a conditional sentence on strict conditions should have been imposed by the learned trial judge. The learned trial judge was under no obligation to impose a conditional sentence upon the appellant. As stated, the sentence was reasonable and within the bounds of sentences for like offences set out in the law. What is unknown is the sentence the trial judge might have imposed had the cross-examination of the complainants been permitted.
[46] In the result the appeal against the convictions is dismissed. The appeal against sentence is allowed and the case remitted back to the learned trial judge to hold a fresh sentencing hearing at which time, if defence counsel is so inclined, he may seek leave to cross-examine the complainants upon their impact statements and present to the learned trial judge all current information relating to the seriously declining health of the appellant.
C. McKinnon J.
Released: December 4, 2012
COURT FILE NO.: 08-5064
DATE: 20121204
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
B.T.
Appellant
ON APPEAL FROM THE CONVICTIONS ENTERED ON DECEMBER 9, 2009 AND THE SENTENCE IMPOSED ON MAY 28, 2010 BY JUSTICE J.D. NADELLE OF THE ONTARIO COURT OF JUSTICE
C. McKinnon J.
Released: December 4, 2012