ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 59/12
DATE: 20130111

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

C.L.

Rick Nathanson, for the Crown, respondent
Vincenzo Rondinelli, the accused, appellant

HEARD: November 22, 2012

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

Mr. Justice Kenneth L. Campbell:

I

Overview

[1] The appellant, C.L., was tried by the Honourable Mr. Justice A. Di Zio of the Ontario Court of Justice on an information that alleged that he committed four sexual offences against one young female complainant, J.A. There were two alleged incidents of sexual impropriety. More particularly, the information alleged that the appellant committed the offences of sexual assault and sexual touching of a minor under 16 years of age, in relation to the complainant, J.A., sometime between May 1 and June 30, 2010. The information also alleged that the appellant subsequently committed those same two offences again, in relation to this same complainant, on the specific date of October 2, 2010.

[2] At the relevant time, the appellant was a 50 year old married man with two teenaged daughters. The complainant was a 15 year old high school student. The appellant and his family lived across the road from the complainant and her family in a townhouse complex.

[3] With respect to the first incident, the Crown alleged that, in May or June of 2010, on an occasion when the two families were out together for dinner, the appellant touched the complainant’s upper thigh area and tried to put his hand between her legs while they were sitting in the back seat of the appellant’s minivan. The complainant’s 12 year old brother witnessed the touching, and the complainant and her brother advised their grandmother of the incident when they returned home. The complainant’s grandmother, however, assumed that this touching was inadvertent or accidental as the appellant was drunk. With respect to the second incident, the Crown alleged that, on October 2, 2010, when the complainant went over to the appellant’s home to advise him that his wife was having car trouble, he led her into the basement area and tried to touch her breasts and her legs and tried to kiss her. The complainant managed to escape and immediately reported the incident to her grandmother and some visiting adults. The complainant was in a very emotionally distraught condition at the time of this complaint. The police were summoned and the complainant advised them of both incidents.

[4] The appellant testified and denied engaging in any sexual impropriety with the complainant. As to the first incident, he admitted being in the van, but testified that he simply fell asleep and never intentionally touched the complainant in any sexual manner. The appellant’s wife testified that her husband and the complainant were not even seated next to each other in the van. As to the second incident, the appellant testified that when the complainant arrived at his home to report his wife’s car trouble, she followed him into the basement, asked him for a hug, which he provided, and then asked him for a kiss. When he refused, she inquired as to whether she was unattractive to him. While he assured her that she was attractive, she ran up the stairs and left his residence. According to the defence theory, the complainant invented her claims of sexual impropriety against the appellant in retaliation for his rejection of her advances.

[5] The trial spanned three days of evidence in February of 2012. After hearing the closing submissions of counsel, the trial judge reserved judgment. Subsequently, on March 5, 2012, the trial judge delivered oral Reasons for Judgment in which he found the appellant guilty of all four offences. At the conclusion of the sentencing hearing on May 22, 2012, the trial judge sentenced the appellant to a total of 175 days imprisonment (just short of six months to account for some three days of pre-trial custody) and two years probation on defined terms. The trial judge also made orders requiring the appellant to provide a DNA sample, to comply with the provisions of the Sex Offender Information Registration Act, S.C. 2004, chap. 10, for a period of ten years, and not to possess any firearms, ammunition, or explosive substance for a period of five years.

[6] The appellant now appeals against both his conviction and sentence. With respect to the conviction appeal, the appellant contends that the trial judge erred in failing to keep the evidence of the two incidents separate in his analysis of whether or not the Crown had proven these allegations against the appellant. The appellant contends, essentially, that the trial judge erroneously used the evidence in relation to one incident as “similar fact evidence” in relation to the other incident. The appellant also contends that the trial judge erred in failing to address the possibility of innocent collusion between the complainant and her brother in relation to the first incident. With respect to the appeal against sentence, the appellant argues that the six month jail term imposed at trial is excessive and should be reduced to a 90 day intermittent term of imprisonment. The appellant also attacks the decision of the trial judge to make a weapons prohibition order under s. 110 of the Criminal Code, R.S.C. 1985, chap. C-46.

II

The Evidence

1. The Background

[7] At the time of the alleged offences in 2010, the complainant, J.A., was 15 years of age. She lived with her grandmother and guardian, C.A., and her three younger brothers in a townhouse in Toronto. The appellant was 50 years of age. He had never before been charged with a criminal offence or had any involvement with the police. The appellant lived with his wife and their two daughters in another townhouse across the street from J.A. The two families were neighbours. The complainant’s grandmother and the appellant’s wife were friends. The complainant went to school with the appellant’s daughters. The complainant was the same age as the appellant’s youngest daughter.

[8] Sometime in May or June of 2010 members of the two families went out to dinner at a restaurant together. The appellant’s wife drove everyone to the restaurant in her van. The appellant’s wife explained to the complainant’s grandmother that she was driving that night as her husband was drunk. The complainant’s grandmother could smell alcohol on the appellant. It was about a 15 minute drive to the restaurant.

[9] On the trip to the restaurant and on the trip home again, everyone sat in the same seats in the van. The complainant’s grandmother sat in the front next to the appellant’s wife who was driving. The second row of seats in the van was occupied by two of the complainant’s brothers. In the last row sat the complainant, her oldest brother A.A., who was 12 years old at the time, and the appellant.

[10] According to the complainant, while they were sitting in the back seat of the van, the appellant began stroking her leg up towards her “privates.” She tried to move further away but the appellant kept touching her. Then, when the complainant managed to block the appellant’s hand with her arm, the appellant began using his elbow to “get through” to her private area between her legs. The complainant testified that she knew that her brother, A.A., could see what the appellant was doing as she could see the “disgusted” expression on his face.

[11] In his testimony, the complainant’s brother, A.A., confirmed that while they were sitting in the back seat of the van that night he saw the appellant touching the “top” or “upper” part of the complainant’s thigh with his hand. He did not see his hand touch in between her legs. He also saw the complainant move her hand down on her thigh to move his hand away so that he could not touch her anymore. In cross-examination, A.A. agreed that this touching was “awkward” as the appellant had never done anything like that before and it was “out of character” for him.

[12] The appellant testified that he recalled going out to dinner one night with his wife and the complainant’s family. His wife dove back and forth to the restaurant in their van. The appellant recalled that, at the time, he was working seven days a week at two jobs. In addition to his regular job, he also had a part-time job working nights each weekend and he was really tired as he could not sleep during the day. The appellant testified that on both the trip to the restaurant and the trip home he slept in the van. He did not recall where he was sitting. When asked about the complainant’s allegations, the appellant testified that he recalled “nothing about that.” Indeed, he testified that “everything is false,” that it was all a “lie,” and that he did not know “why this happened.” When asked by his counsel whether he knew why the complainant would be “saying something that was false” or be “lying” about these alleged events, the appellant replied that he had “no idea” why she might advance a false story.

[13] The testimony of the appellant’s wife supported the version of events provided by the appellant. Indeed, the appellant’s wife testified that on the trips back and forth to the restaurant, the appellant and the complainant were not even sitting next to each other. The appellant’s wife testified that the complainant sat in the bucket seat directly behind her driver’s seat, while the appellant slept on the bench seat at the back of the van next to the complainant’s two younger brothers. She spontaneously offered that she was “not lying” about these seating arrangements in the van. The complainant’s wife also denied that the appellant had been drinking or was drunk that night, but testified that he was simply “very tired” as a result of the two jobs that he was working at the time. She also testified that, when they returned home, the complainant’s demeanour seemed “normal” as if there was “no problem and nothing has happened.”

[14] When they arrived home after dinner, the complainant asked her brother if he had seen what happened, and he confirmed that he had seen the touching. The complainant told him that they were going to tell their grandmother what happened. Their grandmother had noticed that J.A. and A.A. were “whispering” to each other and the complainant appeared to be “a little bit upset.” She asked what they were talking about. At that point, the complainant said: “Nana, we are about to tell you something” and we “hope you don’t get mad at us” because “they are dear friends of yours.” According to the complainant’s grandmother, the complainant and her brother then told her that the appellant had put his hands in the complainant’s “lap.” In an effort to demonstrate where the touching took place, the complainant pointed to her inner thigh area at the top of her legs, and demonstrated how the appellant had moved his hand towards the area between her legs. When the complainant’s grandmother asked if they were sure, the complainant’s brother A.A. replied “yes,” explaining that he had tried to sit next to his sister, but the appellant had not let him. A.A. also indicated that the appellant had tried to touch his sister in this way “many times,” but his sister had pushed him away.

[15] After hearing this information, the complainant’s grandmother explained that sometimes a “drunk person” will “slip” as they don’t know what they’re doing, and she suggested that the touching by the appellant must have been an accident as the appellant and his wife were “very good” people. However, the complainant’s grandmother also told the complainant not to go over the appellant’s house without telling her. The police were not contacted in relation to this incident. Thereafter, the complainant tried to stay as far away from the appellant as possible. She was afraid of him, and he made her feel uncomfortable.

[16] On October 2, 2010, the complainant was at home with her grandmother and her brothers and at least one of their friends. When the telephone rang at approximately 7:00 p.m., the complainant answered it. It was the appellant’s wife. She told the complainant that she was having car trouble and had been trying to telephone her husband, but that she had been unsuccessful in getting through to the appellant. She asked the complainant to go over to her house and tell the appellant about her difficulties. The complainant agreed. She thought that his daughters would be at home, although she was not sure.

[17] The appellant’s wife recalled the telephone conversation with the complainant somewhat differently. She agreed that she made the call, told the complainant about her car problems, and asked her to go over to her house and tell the appellant about these problems. She also testified, however, that the complainant asked her whether her daughters were at home. She told the complainant that her daughters were not at home that night, but wondered why she was asking that question. The complainant told her that she was “just asking.”

[18] The complainant told her grandmother about the substance of the telephone call, and said that she was going over to communicate this information to the appellant. Her grandmother told her to be back in ten minutes as she still had homework to complete. The complainant agreed.

[19] According to the complainant, when she knocked on the door of the appellant’s townhouse, he greeted her at the door. She began telling him about his wife’s problem with her car breaking down. As this was happening, the phone rang. The appellant went to answer the phone in the kitchen and told the complainant to come inside as it was cold. The complainant then stepped inside into the hallway by the front door.

[20] The complainant testified that when the appellant was finished with his brief phone call, he took her by the arm and led her into the dining room area and told her to sit down. When she told him that she had to go, he physically directed her down the nearby stairs and into the basement. She testified that she was scared and thought he might have a weapon. There was no evidence of any weapon.

[21] Once they were downstairs, the appellant “tugged” her by the arm until they were sitting together on the bed located in the basement. According to the complainant, the appellant then began stroking her back, hugging her with his arm around her, and trying to kiss her. She thought he was trying to seduce her. The appellant then started trying to touch her breasts and her legs, but she kept “fidgeting” to prevent it. At one point the appellant got down on both knees in front of her and was “trying to go up” her body. The appellant then pushed him away and tried to slap him. She then ran upstairs, unlocked the front door, and ran home.

[22] In cross-examination, the complainant denied that she simply walked downstairs to the basement on her own. The complainant also denied that, at any point, she had tried to kiss or hug the appellant. The complainant denied ever being angry with the appellant or his family. Indeed, the complainant testified that she liked his family and thought that they were “good people.”

[23] The appellant testified that, on the evening of October 2, 2010, he had a glass of wine. His wife, who does not drink, then went out to buy him some beer and left him alone at home watching television in the basement. At some point he heard the dog barking at the front door. He thought it was his wife, who was always forgetting her keys. When he went upstairs he heard someone knocking on the door. When he went to the door he was wearing a pair of jogging pants, but no shirt.

[24] The appellant explained that it was the complainant at the door and she told him about his wife’s problems with her car. As they were talking, the telephone rang. As a courtesy, the appellant invited the complainant to come in while he answered the phone. The telephone was in the kitchen, and when he answered it, the call was from his wife. They talked about the problems she was having with the car and how to fix it. The appellant knew where his wife was parked. As she was at the nearest beer store, the appellant told her he would walk over and try to fix the car. The appellant’s wife confirmed the substance of this telephone call.

[25] According to the appellant, as he was still talking to his wife, he went downstairs to the laundry room in their basement, and got dressed to go out to help his wife. He put on a shirt, another pair of pants on top of his jogging pants, a jacket, and a pair of shoes. As he came out of the laundry room, he was surprised to see the complainant in the basement. He had not seen her the entire time he was on the telephone and he thought that she had already left.

[26] The appellant testified that he asked her what she was doing there, and the complainant shrugged her shoulders and said that she didn’t know. The complainant then moved closer to him and asked him for a hug. While he had never hugged her before, the appellant obliged her and used one hand to give her a hug. According to the appellant, the complainant then said: “Can you kiss me?” The appellant felt uncomfortable as the complainant was the same age as his daughter, and said: “No, no.” The complainant then asked “why” and inquired whether it was because she was “not attractive.” The appellant replied: “No, no, no. It’s not because of that. You are beautiful. You’re attractive.” The complainant seemed “a little bit upset” and then turned around and ran up the stairs.

[27] The appellant testified that he was “perplexed,” “shocked” and “surprised” by all this, and did not know what to do. It felt like he was dreaming. He then left the house and walked to where his wife was located with their vehicle. This walk took him approximately 15 minutes.

[28] In cross-examination, the appellant denied that he and the complainant were ever sitting on the bed together in the basement.

[29] Just as the complainant’s grandmother was about to send one of the boys over to get the complainant from the appellant’s house, the complainant arrived home. She had been gone longer than 10 minutes. There was a “crash” as she banged the door open. The complainant was shaking, crying, and screaming. She seemed hysterical. Her grandmother testified that she had never seen the complainant in that kind of emotional condition before. When she asked what happened, the complainant told her that the appellant “touched” her.

[30] As the complainant’s grandmother tried to calm her and find out what exactly had happened, the parents of one of the complainant’s brother’s friends arrived at the door. When the doorbell rang, the complainant looked “scared” and fled to the basement where she continued crying. The complainant testified that she thought that it was the appellant at the door and she was afraid to hear his voice.

[31] The newly arrived parents went to the basement to talk to the complainant. They observed that the complainant was “very, very visibly upset,” crying, and looked “genuinely scared.” They had never seen her in this condition. Usually, she was just a “regular teenager,” but on this occasion her demeanour was completely different. Once the complainant began to tell them what happened, they decided to take the complainant outside to their truck to talk to her privately, away from the other children in the house. This was “not something for their ears.” When they got to the truck, the parents tried to get the complainant to calm down. They wrapped her in a blanket. When they inquired, the complainant told them what had happened at the appellant’s house that night. She explained how the appellant had touched her in the basement of his home, and how she had “fought him off” and ran home. The complainant also told them about the earlier incident with the appellant, in the van, when he had touched her upper thigh “towards the groin.” They were outside at their truck talking for approximately 15 to 20 minutes.

[32] After these parents had finished talking to the complainant, they spoke to the complainant’s grandmother, and the police were summoned to the home. Before the police arrived, the parents had the complainant sit down and make some written notes about what had happened between her and the appellant while the events were still fresh in her mind. In fact, the complainant wrote two pages of notes outlining the details of both of the incidents with the appellant. Subsequently, when the complainant discussed the matter with the police, she advised them about incidents between herself and the complainant.

[33] According to the appellant, when he arrived at the beer store, his wife was angry with him and upset. Since their last telephone conversation, his wife had spoken to the complainant’s grandmother, and had learned of the allegation that he had “touched” the complainant.

[34] The appellant’s wife explained that she had been waiting so long for the appellant that she had called the complainant’s home again to see if she could find out if the appellant was coming. When she spoke to the complainant’s grandmother, she heard that the complainant had alleged that the appellant touched the complainant’s breast and had tried to kiss her, but that the complainant had slapped him and returned home. The appellant’s wife told her that it could not be true as her husband would not do such a thing.

[35] According to the appellant, on hearing this allegation that he had touched the complainant, he told his wife: “No. That can’t be. That’s not the case. It didn’t happen.” The complainant’s wife testified that, on hearing of this allegation, her husband said: “Bullshit,” and wondered why this false allegation had been made against him. He then worked on fixing the car as it was cold outside. Eventually, by the time they got home, the police were waiting for the appellant at his residence and arrested him. The appellant testified that he was “shocked” when the police arrested him as he had “never been arrested by [the] police in [his] life.”

[36] Following the appellant’s arrest, the police interviewed him for approximately an hour. The defence conceded the voluntariness of the statements made by the appellant during the course of this interview. While the appellant mentioned to the police that the complainant had been in his basement earlier that evening, at no point did the appellant make any mention of the complainant asking for a hug or a kiss or the appellant hugging the complainant. However, the appellant testified that he subsequently told his wife about the complainant asking for a hug and a kiss. His wife confirmed this discussion.

... (continues exactly as in the source through paragraph [94] and closing headings)

V

Conclusion

[94] In the result, the appeal against conviction is dismissed. The appeal against sentence is allowed, and the total custodial sentence imposed upon the appellant is reduced to 90 days imprisonment, to be served intermittently on weekends. The sentence imposed by the trial judge otherwise stands. An order shall issue accordingly.

Kenneth L. Campbell J.

RELEASED: January 11, 2013

COURT FILE NO.: 59/12

DATE: 20130111

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

C.L.

REASONS FOR JUDGMENT

Kenneth L. Campbell J.

Released: January 11, 2013