R. v. G., A.

R. v. G., A. Collection Decisions of the Court of Appeal Date 1998-10-08 Docket numbers C25403 Judges Finlayson, George Duncan; Labrosse, Jean-Marc; Borins, Stephen Subject Criminal Decision Content DATE: 19981008 DOCKET: C25403 COURT OF APPEAL FOR ONTARIO FINLAYSON, LABROSSE and BORINS JJ.A BETWEEN: ) ) James Lockyer HER MAJESTY THE QUEEN ) for the appellant ) (Respondent)) ) and ) C. Jane Arnup ) for the respondent A.G. ) ) (Appellant)) ) Heard: September 9, 1998 ) FINLAYSON J.A: (dissenting) [1] On July 20, 1995, the appellant was charged with one count of sexual interference contrary to s. 151 of the Criminal Code and one count of sexual assault contrary to s. 271. The complainant on both counts was a niece of the appellant. She alleged that on three occasions between December 1986 and March 1988, the appellant briefly touched and rubbed her vaginal area while she was fully clothed. [2] On May 3, 1996, the appellant’s trial commenced before Flaherty P.C.J. in the Ontario Court (Provincial Division). The appellant testified and denied the allegations. On June 12, 1996, he was convicted of the sexual assault count. The trial judge held that the finding of guilt on the sexual count “precludes a finding of guilt for sexual interference based on the same conduct” and acquitted the appellant on that count. The appellant was sentenced to five months imprisonment and three years’ probation. He now appeals from his conviction and sentence. Facts [3] The complainant was the appellant’s niece. The appellant’s wife was the sister of the complainant’s mother and was the complainant’s godmother. The complainant sometimes called the appellant her godfather. The complainant was sixteen years of age at the time she testified. She was unsure how old she was when the offences took place, but estimated that she was between six and eight years of age. She testified that while she was seated the appellant rubbed her vagina, through her clothing, on three occasions when their families were visiting. The first of the two touching incidents happened at the appellant’s home just before Christmas in either 1986 or 1987, and the second occurred a few weeks later. The complainant testified that in both incidents the assault occurred on a red couch in the appellant’s basement; in both incidents the appellant asked her if it felt good, and told her not to tell anyone. The third incident is said to have occurred at the home of the complainant. The only other people who may have been present on any of these occasions were one of the complainant’s younger sisters and the appellant’s young son, who were said by the complainant to be present during the second incident. There is no explanation as to why these incidents ceased when they did. [4] The appellant testified and denied touching the complainant’s vagina and also asserted that he was never alone with just the complainant and the other children for more than a few seconds during any of the frequent visits the families paid to each other’s houses. He stated that the red couch upon which the complainant testified she was sitting with the appellant when he touched her the first two times was not in his basement until the summer of 1988, whereas the time frame alleged in the information was from December 1, 1986 to March 31, 1988. In addition, he testified that in 1986 and 1987 part of his basement was rented out to tenants, and the remaining part was under construction. The appellant testified that he was able to pinpoint the time by referring to bills for products he used to renovate the basement. [5] The appellant’s wife also testified. The main thrust of her evidence, and that of a family acquaintance, was with reference to the red couch. They supported the appellant on this point, testifying that the couch was not in the basement until after the incidents alleged by the complainant. The wife also testified to the fact that her sister did not like the appellant and that in October of 1995 she told her sister that she would do anything to put the appellant behind bars. [6] As is evident from the above narrative, there was a lapse of eight to ten years between the commission of the offences and the trial. The circumstances of the disclosure of the offences gives rise to considerable concern. [7] Sometime in the fall of either 1993 or 1994, the complainant was talking to a school friend, N.. This disclosure came up rather innocently when N. stated that she was having trouble at home. After the complaint’s disclosure of the touchings, N. told the complainant that her cousin’s husband had raped her. [8] On July 16, 1995, the appellant and his family paid the complainant’s family a visit. The complainant was not home, as she was at Canada’s Wonderland with a friend called L.. According to the complainant’s mother, the appellant, when he found that the complainant was out with L., stated: “Good. It’s not N.”. When asked why he made this statement, he then said that N. was a bad influence. She smoked, her family had problems and “she is sleeping around with all the guys”. According to the mother, the appellant also said that he had seen N. recently with the complainant in the park and they had tried to hide from him. [9] The next day, July 17, the complainant’s mother asked her daughter if she had seen the appellant in the park when she had been there with N.. The complainant said she had not seen the appellant. The mother then told her of some of the conversation she had with the appellant, including that he had said that N. was a bad influence. The complainant’s evidence was that during this conversation, her mother had warned her about the appellant and told her that if he came to the house when the mother and her father were not there, she should lock the door and put the chain on it. She should not let him in. The mother said she “should watch out for him because they’ve heard of other girls”. She said: “I don’t trust this man. I don’t want him in the house with the girls alone.” [10] The complainant then disclosed her account of the sexual activities of the appellant for the stated reason that she was concerned for her sisters. When the complainant’s father heard of the appellant’s conduct, his first reaction was to confront the appellant. However, his wife was opposed to this and on July 18 she took the complainant to the family doctor for some advice. The doctor referred the complainant to the Children’s Aid Society, which in turn referred her to the police. On July 20, the complainant gave a videotaped interview. The complainant testified that she had been reluctant to see the police as she just “wanted the whole thing forgotten about”. As for the appellant, he had no knowledge of the allegations until he was arrested outside his workplace on July 20. Issue: Is the verdict unreasonable? [11] I have elected to treat this ground of appeal as relating to the reasonableness of the verdict, but in fairness to counsel for the appellant, he has insisted that the question should be: In all the circumstances of the case, is the trial judge’s verdict unsafe? Counsel then proceeded to develop an argument that the court should give an expanded meaning to the word “unreasonable” in s. 686(1)(a)(i) of the Code and even to the word “unsafe” as it has been applied by this court. He asked us to import the concept of “a lurking doubt” and to quash the verdict on that basis. Indeed he went further and stated that he was prepared to concede, for a while at least, that if the court took the traditional view of “unreasonable” as interpreted by the Supreme Court of Canada in R. v. Yebes (1987), 36 C.C.C. (3d) 417 (S.C.C.), that this case would not meet that standard. [12] In support of this new standard, counsel referred the court to a number of cases in the United Kingdom, notably R. v. Cooper (1969), 53 Cr. App. R. 82 (C.A.) and some in Australia; e.g. Chamberlain v. The Queen (No. 2) (1984), 153 C.L.R. 521 (Aust. H.C.). He also referred us to a decision that I wrote for the court in R. v. Malcolm (1993), 21 C.R. (4th) 241 (Ont. C.A.) where at pp. 250-52 I considered and applied Cooper and other English cases in support of my view that the standard of unreasonableness embraces an unsafe verdict. Relying further on Cooper and other cases, I stated that when considering whether a verdict was unsafe, the court was entitled to take a subjective view of the record. I did not, as suggested by later decisions commenting on Malcolm, attempt to expand the definition of “unreasonable” in the Code. See: R. v. Irani (1996), 81 B.C.A.C. 203 (B.C. C.A.), application for leave to appeal dismissed March 7, 1997, [1996] S.C.C.A. No. 575, and R. v. Guyatt (1997), 119 C.C.C. (3d) 304 (B.C. C.A.), application for leave to appeal dismissed May 14, 1998, [1997] S.C.C.A. No. 601. My position was stated in Malcolm at p. 250: However, accepting as I must, the limitations on this jurisdiction, it is my opinion that this court should not hesitate to exercise it in a proper case. In practice, it is usually invoked by appellants in jury cases, but there is no such limitation in the Code. I do not think we should avoid our responsibility simply because we are faced with a decision of the trial judge who has not misdirected himself on the law and has indicated by his reasons that he is aware of the difficulties inherent in the Crown’s case. The cases I have referred to emphasize the limitations in appellate jurisdiction, but are not that helpful in providing guidance as to when the jurisdiction should be exercised. I find some comfort in English decisions which point out that the final analysis, the reaction of the court as to when an injustice has been done is a subjective one. While the language of the English Court of Appeal’s empowering statute is different than our Code, the court asks itself what amounts to the same question: Is the verdict safe or unsatisfactory? I think that as appellate judges we will be expected to ask ourselves a similar question notwithstanding the absence of reversible error on the part of the trial judge. [13] I believe this position is supported by what was said by Doherty J.A. in R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.) at 515: Section 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, requires that this court review a trial record to determine whether a conviction “is unreasonable or cannot be supported by the evidence”. The section recognizes that there will be cases where despite an error-free trial and the existence of some evidence against an accused, appellate intervention is necessary to avoid an injustice. As Sopinka J. said in R. v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.) at 212, s. 686(1)(a)(i) is: ¼ intended as an additional and salutary safeguard against the conviction of the innocent. The review directed by s. 686(1)(a)(i) is a limited one for very good reasons. The appellate process is not well suited to the assessment of the cogency of evidence led at trial. Appellate courts can claim no particular expertise in the secondhand evaluation of evidence. Appellate assessment of the factual merits of a case is not likely to be more reliable or accurate than the judgment made at first instance. Consequently, it is only in the clearest cases where the result at trial can be said to be unreasonable that appellate intervention is warranted. A verdict is unreasonable only where the appellate court is satisfied that the verdict is one that a properly instructed trier of fact acting judicially could not reasonably have rendered: R. v. Corbett (1973), 14 C.C.C. (2d) 385 (S.C.C.) at 389; R. v. Yebes (1987), 36 C.C.C. (3d) 417 (S.C.C.) at 430; R. v. S. (P.L.) (1991), 64 C.C.C. (3d) 193 (S.C.C.) at 197. [14] The full quotation from Sopinka J. in Burke, supra is: I acknowledge that this [s. 686(1)(a)(i)] is a power which an appellate court will exercise sparingly. This is not to say that an appellate court should shrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground and that it would be unsafe to maintain it. In conferring this power on appellate courts to be applied only in appeals by the accused, it was intended as an additional and salutary safeguard against the conviction of the innocent. [15] Accordingly, I do not think that it is necessary to introduce fresh language to define our jurisdiction as an appellate court. In my opinion, there can be no argument that the jurisdiction of this court is not limited to matters of law or mixed law and fact. We have plenary powers over all questions of fact and are in a position to reverse trial judges on their verdicts in situations where they have demonstrated no error in their reasons for conviction. While most of the reported cases dealing with unreasonable verdicts relate to identification convictions, the principles are as applicable, indeed even more applicable for reasons that I will develop, to sexual assault convictions. In R. v. S.(W). (sub nom. R. v. Stewart) (1994), 18 O.R. (3d) 509 (Ont. C.A.), leave to appeal refused (1994), 93 C.C.C. (3d) vi, after quoting briefly from two judgments of McLachlin J. in the Supreme Court of Canada (R. v. W.(R.) (1992), 74 C.C.C. (3d) 134 at 141-42, and R. v. Burns (1994), 89 C.C.C. (3d) 193 at 198-9), I stated at p. 521: This court has long recognized that it is a statutory judge of fact, as well as of law, and that it should exercise its power under s. 686(1)(a)(i) of the Code in cases where the evidence in support of a conviction is, in the court’s opinion, of such a kind, description or character that it would be unsafe to rest a conviction on this evidence: see R. v. Boyd (1953), 105 C.C.C. 146 at pp. 151-2, 16 C.R. 412, [1953] O.R. 215 (Ont. C.A.); R. v. Smith (1952), 103 C.C.C. 58, 14 C.R. 304, [1952] O.R. 432 (Ont. C.A.); and R. v. Groulx and Nevers (1953), 105 C.C.C. 380, 16 C.R. 145, [1953] O.R. 337 (Ont. C.A.). See also R. v. Malcolm (1993), 81 C.C.C. (3d) 196 at pp. 204-8, 21 C.R. (4th) 241, 13 O.R. (3d) 165 (Ont. C.A.). [16] At the conclusion of the appellant’s argument, this court announced that it did not propose to deal with what I might describe as the “lurking doubt” argument. Counsel for the Crown was instructed to address the court on the issue of the reasonableness of the verdict without reference to the appellant’s concept of an expanded jurisdiction. [17] The appellant had submitted that the verdict was unsafe for the following reasons: 1. There was no physical evidence that the complainant had been assaulted; 2. The appellant testified that the assaults did not occur; 3. The Crown did not introduce any evidence to undermine the credibility of the appellant; 4. In his reasons for judgment, the trial judge did not state why he disbelieved the appellant’s evidence and believed the complainant’s evidence; 5. The complainant’s evidence that the assaults in the appellant’s home occurred on a red couch in the basement was contradicted by the evidence of the appellant, his wife and a family friend. They testified that at the time of the alleged assaults, the appellant’s basement was under construction and that the appellant’s red couch was located in another part of the house; 6. The complainant had a motive to fabricate. Her mother had told her that the appellant did not like one of her closest friends shortly before the complainant revealed the alleged assaults. In addition, before her disclosure, the complainant had learned from her mother that her mother suspected that the appellant had engaged in untoward conduct with other girls. In the complainant’s mind, this could have served to justify and add credibility to the allegations. [18] Another point that was stressed in argument is that it is obvious that there was a long standing animosity between the complainant’s mother and the appellant. It was she who repeated gossip about him to her daughter and put her in fear for her sisters. Both the mother and the complainant testified that it was the mother’s warning about the appellant and the discussion of the reasons for it that so upset the complainant and led to her disclosure of the assaults to her mother. It was the mother who orchestrated the prosecution without bothering to give the appellant an opportunity to respond to the allegations. [19] It is conceded by counsel for the appellant that there are no errors in law in the reasons of the trial judge in convicting the appellant. I have read them carefully and they say all of the right things. However, as indicated in the authorities cited above, it is in this situation that the residual jurisdiction of the court is available where in the opinion of the court the verdict is unreasonable. In my opinion, I am entitled to take a subjective view of the evidence and ask myself if I am satisfied that the verdict is safe. I have done so and I am not so satisfied. [20] It seems to me that the trial judge failed to approach the complainant’s evidence with the skepticism that it deserved in this case. There is not the remotest of supporting evidence that any sexual acts took place. Indeed the only objective evidence, that of the location of the red couch, contradicts the complainant. The sexual acts are highly ambiguous coming as they do from an uncle and “godfather” to the young girl. Any form of “horseplay” could explain them. Giving the most generous interpretation to the acts as described by the complainant, they are hardly consistent with intent to commit a sexual assault. Even the trial judge noted that at the time of their occurrence, the complainant did not know what the touchings meant. The evidence is very much open to the construction that the appellant could have had some incidental contact with the girl that was entirely innocent. [21] There is no pattern of abuse here. The appellant must have had more than three opportunities to abuse the girl if he was of a mind to. No explanation is offered for the fact that the assaults simply ceased. On the darker side, the evidence is not inconsistent with the appellant’s contention that the complainant had a motive to fabricate, given the appellant’s concerns regarding her friendship with N.. [22] Having had the advantage of reading the transcripts of many of what are termed “historical sexual abuse cases” that have come before this court over the last decade, I am concerned that this case does fit a pattern of allegations of sexual abuse that are initiated by ulterior motives. The complaints are usually of this vague and unsubstantiated nature. They are so stale dated and amorphous that it is impossible for the person accused to give a detailed rebuttal to them without arousing suspicion as to why his memory is so precise. [23] The defence also reveals a pattern. Faced with attempting to recall what must have been a non-event to any normal person, the accused seized upon a material discrepancy in the complainant’s evidence and demonstrated objectively that the appellant’s story cannot be true in a significant particular. In this case it was the red couch. The trial judge at no time stated that he disbelieved the appellant or the other witnesses on this issue (by way of a sidebar, he did not expressly disbelieve the appellant on any of his evidence). His approach to the red couch evidence was to ignore its importance. He said: The complained of detail is this case of course relates to the where of the offence as recounted by a six or seven-year-old as opposed to the who, the who-did-it and what- was-done to her by him. [24] The criminal courts need a new gatekeeper. Parliament and the judiciary have radically eroded the traditional protection available to the accused in sexual assault cases. My comment does not reflect nostalgia. The changes were long overdue. However, the pendulum must not be allowed to swing too far in the other direction. As I had occasion to observe in R. v. P. (M.B.) (1992), 9 O.R. (3d) 424, affirmed [1994] 1 S.C.R. 555 at p. 433: In our efforts to protect those most deserving of protection, we must not neglect our traditional role as protectors of the rights of the accused to a fair trial. [25] The majority of sexual offences are now tried without a jury in the Ontario Court (Provincial Division). There is no preliminary hearing in which both the Crown and the defence can make some assessment of the reliability of the complainant’s testimony. In any event, the safeguard of the exercise of prosecutorial discretion in weak cases has fallen victim to the catchword “zero tolerance”. The former rules regarding corroboration have been abolished. Despite the obvious need in most cases for some supporting evidence, many judges pay lip service to this admonition. Distortions in the complainant’s evidence are too often dismissed as the norm with children. The accused who testifies is granted no such leeway. The burden quickly shifts to him to explain his conduct. Reasonable doubt, the most fundamental concept of British justice, runs the risk of becoming a hollow invocation, rather than the shield against injustice it was meant to be. [26] There has to be a new gatekeeper and that person is the trial judge. He was not present in this case. The trial judge was prepared to convict the appellant on the flimsiest of evidence. This complaint should not have gone to trial, much less have led to a conviction. I do not require any expanded version of “unreasonable” to justify interference with this verdict. Where the trial judge convicts on evidence such as this record displays, the Court of Appeal has more than the right, it has the duty to interfere and, in the interests of justice, quash the verdict as unreasonable. [27] There were other grounds raised on appeal, including a sentence appeal. In the light of my concern over the reasonableness of the verdict, it is not necessary for me to deal with them. Disposition [28] I would allow the appeal, quash the conviction and enter a verdict of not guilty. Released: December 10, 1998 LABROSSE J.A.: [29] My colleague, Finlayson J.A., has rejected the concept of the "lurking doubt" in the application and interpretation of s. 686(1)(a) of the Criminal Code. I agree with his conclusion and with his reasons for rejecting the argument of counsel for the appellant that the court should give an expanded meaning to s. 686(1)(a)(i). Accordingly, this appeal must be decided on the traditional basis of the reasonableness of the verdict. Finlayson J.A. concluded that the verdict is not reasonable. Unfortunately, I cannot agree with his conclusion. IS THE VERDICT UNREASONABLE? [30] On the hearing of this appeal, Mr. Lockyer, counsel for the appellant, did not argue that the verdict was unreasonable. On the contrary, he conceded that the verdict was reasonable. He submitted that the appeal could not succeed on the basis of the traditional interpretation of s. 686(1)(a) but could only succeed if his argument, based on the" lurking doubt" concept, was accepted. I agree with the concession made by counsel for the appellant. In my view, the verdict is reasonable. [31] The test to be applied in assessing the reasonableness of the verdict was articulated by the Supreme Court of Canada in R. v. Corbett (1973), 14 C.C.C. (2d) 385 at 389 (S.C.C.), where Pigeon J., speaking for the majority, stated: ...the question is whether the verdict is reasonable, not whether it is unjustified. The function of the Court is not to substitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered. This test was further expanded by McIntyre J. in R. v. Yebes (1987), 36 C.C.C. (3d) 417 at 430 (S.C.C.): While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re- examine and to some extent reweigh and consider the effect of the evidence. [32] In R. v. Francois (1994), 91 C.C.C. (3d) 289, McLachlin J., speaking for the majority, confirmed the above statements. She specified that the need to reexamine and to some extent reweigh the evidence also applies to cases where the objection to the conviction is based on credibility. However, she indicated that the mere presence of contradictory details in the evidence or motives to concoct does not lead to an inference that the verdict is unreasonable (p. 297). McLachlin J. also emphasized the advantage possessed by the trier of fact of seeing and hearing the evidence of the witnesses which the appellate court does not possess, and which it must bear in mind in deciding whether the verdict is unreasonable. See also R. v. W. (R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.) at 141-42. [33] It is in light of these authorities that the issue of the reasonableness of verdict must be decided. [34] Although there have been numerous verdicts which have been overturned by appellate courts on the basis of an unreasonable verdict, such cases are illustrative of particular situations that arose from inherently flawed evidence. Included in this category are cases involving frail identification evidence, allegations of a bizarre nature, evidence fraught with inconsistencies on central aspects of the case, a central witness who is proven to have lied or grossly exaggerated and cases where no confirmatory evidence existed when such evidence would be expected to exist. See generally: R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.), R. v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.), R. v. Quach (1995), 107 Man. R. (2d) 127 (Man. C.A.). The present case is not in this category of cases. [35] A useful approach for assessing the reasonableness of a verdict in a case which turns largely on the respective credibility of the complainant and the accused was provided by my colleague Rosenberg J.A. in R. v. Mair (1998), 122 C.C.C. (3d) 563 (Ont. C.A.). In his analysis of the issue of the reasonableness of the verdict, he stated at pp. 568-69: I have not been persuaded that the trial judge's findings on credibility and reliability in favour of the complainant's evidence, or his finding against the appellant's evidence, were unreasonable. Those findings are supported by the evidence. Except for the disclosure issues dealt with below, this case contains few of the features which justify reviewing findings of credibility. The events testified to by the complainant have no particularly bizarre aspects as in R. v. R. (D.) (1996), 107 C.C.C. (3d) 289 (S.C.C.). The account given by the complainant was internally consistent and her evidence was free of the frailties found in the testimony of the complainants in R. v. Burke. To the extent it can be ascertained from the transcript, the trial judge's description of the manner in which the complainant gave her evidence is supported by the evidence. Finally, this is not a case where there is any manifest reason to doubt the reliability of the complainant's account. ... The complainant's evidence, if believed, was capable of supporting the verdicts. As I explained above, since the trial judge's findings with respect to the credibility of the complainant and the appellant are supported by the evidence the verdicts were not unreasonable. [36] The elements identified by Rosenberg J.A. indicating that the complainant's credibility was supported by the evidence are directly applicable to the instant case. There is no bizarre aspect in the testimony of the complainant that could lead to the inference that her account is unreliable. Additionally, her account is internally consistent and there is no manifest reason to doubt its reliability. [37] With respect to the contradictory testimony regarding the location of the red couch, which is reviewed by Finlayson J.A., the Supreme Court of Canada has commented in R. v. W.(R.), supra, at 144, that for events that occurred in childhood, the "presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying". (The complainant was between six and eight years of age at the time.) As such, the contradiction regarding the location of the red couch does little to undermine the reliability of the complainant's account of events. Similarly, the allegation that the complainant was motivated to fabricate her story does not lead to the conclusion that the trial judge's verdict was unreasonable. Finally, the trial judge's failure to state why the evidence of the appellant was rejected does not render a verdict unreasonable nor does it mean that the trial judge, who reviewed both the appellant's evidence and the other supporting evidence in detail, failed to consider the appellant's evidence when rendering this verdict. See R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.). [38] There is no allegation that the trial judge either misapprehended the evidence or that he failed to consider relevant evidence. He reviewed both the legal principles applicable to the assessment of credibility and the onus of proof and he carefully reviewed the evidence. He accepted the evidence of the complainant. In particular, he was satisfied with the explanation for the delayed disclosure and he concluded that the complainant did not have a motive to lie. He concluded, as was within his purview, that the charges against the appellant were proven beyond a reasonable doubt. Keeping in mind the comments of McLachlin J. in R. v. W.(R.), supra, that in applying the unreasonable verdict test the appellate court should show great deference to findings of credibility made at trial given the advantage possessed by the trial judge in hearing the evidence and observing the demeanour of the witnesses, I conclude that the trial judge's verdict is supported by the evidence and is not unreasonable, as conceded by counsel for the appellant. [39] I cannot agree with the comments made by Finlayson J.A. with respect to sexual assaults, particularly those found in paragraphs 25 to 26 of his reasons. [40] I also cannot agree with his reasons for concluding that the verdict is unreasonable. Finlayson J.A. noted that the majority of sexual offences are now tried without a jury in the Ontario Court (Provincial Division). This change resulted from recent amendments to s. 271 of the Criminal Code which increased the maximum penalty for summary convictions from six months to eighteen months. In my view, neither the recent amendments to s. 271, nor the other factors identified by Finlayson J.A. in paragraphs 25 and 26 of his reasons, provide a basis for changing the standard of appellate review when a verdict is alleged to be unreasonable. His approach would give an appellate court a power that far exceeds the standard of review recognized by the Supreme Court of Canada. DID THE TRIAL JUDGE’S COMMENTS INDICATE A REASONABLE APPREHENSION OF BIAS? [41] As a second ground of appeal, the appellant argued that certain comments made by the trial judge jeopardized the fairness of the trial and the appearance of impartiality. In R v. S. (R.D.) (1997), 118 C.C.C. (3d) 353 at 367 (S.C.C.), the Supreme Court of Canada confirmed the test for determining whether there was a reasonable apprehension of bias during the course of a trial. At p. 367-68, L'Heureux-Dubé and McLachlin JJ., quoting de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394-95, said: [W]hat would an informed person viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [42] In applying this test to the conduct of the trial judge in R v. S. (R.D.), L'Heureux-Dubé and McLachlin JJ. noted the importance of construing the impugned conduct in light of the whole trial proceedings and of all other portions of the judgment. They also highlighted the strong presumption of impartiality that applies to trial judges and the hesitancy of reviewing courts to make a finding of bias, in the absence of convincing evidence to that effect. [43] Similarly, in R. v. Valley (1986), 26 C.C.C. (3d) 207 at 232 (Ont.C.A.), this court stated that the question to be decided when dealing with allegations of impartiality is whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. [1] [44] Counsel for the appellant, who was not counsel at trial, points to four exchanges between defence counsel and the trial judge, which he submitted seriously jeopardized the fairness of the appellant’s trial and the appearance of impartiality. I will deal with each of these exchanges in turn. [45] The first exchange occurred early in the cross-examination of the complainant. Having received testimony that the complainant’s mother had taken her to see a doctor following her disclosure of the sexual abuse, defence counsel proceeded to ask the following questions: Q. All right. And so you go see the doctor, and when you're at the doctor's office, what happens there? Tell us. A. My mom told him -- no, actually, my mom wanted me to tell him. I told him that I was abused. Q. Did you say that your uncle had rubbed your vagina? A. Yes, that was the information I think I did give. No, probably -- I can't use that. I can't -- I'm not sure of the exact information I gave. Q. Did you tell the doctor that your uncle rubbed your vagina three times over your clothes? A. No, I don't remember telling him that. Q. Did you tell him that your uncle had had sexual intercourse with you? A. No, I did not tell him that. Q. Did you tell him that your uncle put an object up your vagina? A. No, I did not tell him that. Q. Did you tell the doctor that your uncle had put his fist up your vagina? A. No, I did not tell him that. Q. Did you tell the doctor that my client, your uncle, had put his finger in your vagina? A. No, I did not tell him. Q. Did you tell the doctor that your uncle had put anything in your vagina? A. Inside? No. Q. Okay. Did you convey to the doctor in general terms that all that had happened. . . A. Could you please tell me what convey means? Q. Convey means to communicate, to tell, to explain. A. Okay. Q. Did you explain to the doctor that what your uncle had done was confined to touching your vagina outside of your vagina, not inside? At this point, Crown counsel objected to defence counsel's line of questioning. Defence counsel stated that he was trying to determine why the complainant had gone to see the doctor. When the trial judge ascertained that defence counsel had no basis for believing that the complainant had reported any penetration to the doctor, the following exchange occurred: The Court: It's shocking that you would ask those kinds of questions. They can only be calculated to embarrass the witness. You know, Bonzo the chimp would know that people go to doctors for counselling as well as medical treatment, [defence counsel's name]. That is shocking and outrageous. You have no business suggesting to this young woman that she told anybody that somebody put a fist up her vagina when you know very well that she made no such allegation. [Defence counsel]: Well, I don't know really what she said to the doctor. The Court: Well, then don't suggest any such thing. [Defence counsel]: What I'm trying to determine is what, in fact, was said to the doctor . . . The Court: Well, in my view you are acting improperly. You are trying to -- your conduct is outrageous. [46] This clear rebuke from the trial judge resulted when he ascertained that defence counsel had no basis for believing or suspecting that the complainant had revealed to the doctor that anything had been inserted into her vagina, let alone the appellant’s fist. Based on disclosure, defence counsel would have known the substance of the complainant’s allegations. As such, the questions were improper, outrageous and clearly exceeded the proper limits of cross-examination. The questions could only have been intended to embarrass the complainant. Further, the trial judge was justified in stating that it was shocking that defence counsel proceeded with such a line of questioning when he had no basis to justify the questions. Although I agree with the trial judge’s comment that it is generally known that people go to doctors for counselling as well as medical treatment, the reference to “Bonzo the chimp” was uncalled for and cannot be justified. [47] The second incident occurred shortly after the first, when counsel continued to ask questions which were, in his own words, designed to help him understand the reason for the complainant seeing the doctor when there had been no physical examination. The trial judge again indicated that there were other reasons that people go to doctors besides physical examinations (for instance, to obtain counselling or medical referrals). When defence counsel persisted in his inquiry, insisting that he couldn’t understand why this complainant would go to the doctor, the trial judge stated: Well, [defence counsel's name], I can't believe you're so dumb that you can't imagine why she went to the doctor. It's quite normal. So don't suggest that you have no idea why she would go to a family doctor as a result of the disclosure she made to her mother. [48] The line of questioning pursued by counsel was unskilful. First, defence counsel had already received an answer from the complainant that it was her mother who took her to see the doctor. Second, a simple question at the outset as to why she went to see the doctor would likely have clarified any confusion. The trial judge was obviously correct in stating that people see doctors for counselling as well as medical treatment. The reference to “dumb” was again uncalled for and cannot be justified. [49] These two rebukes from the trial judge came as a result of highly improper questioning. In fairness to counsel for the appellant, he did not attempt to justify the conduct of defence counsel. The incidents covered only four pages (including the objections of Crown counsel) out of sixty pages of cross- examination. The trial judge otherwise permitted extensive cross- examination of the complainant and twice permitted counsel to reopen his cross-examination to cover areas that were initially omitted. [50] The third allegation of impartiality is found in the trial judge’s reasons for judgment where he says at p. 105: I sincerely regret that in the course of [defence counsel's] cross-examination of the complainant I found it necessary to strongly admonish him when he put to her a series of questions that suggested she had reported to her family physician far more violent and intrusive sexual misconduct than she did without, as it soon became apparent, any disclosure that that had been the case. I found his explanation that he could not imagine why she would have been taken to see a physician otherwise to be disingenuous. This comment was brief and directed solely at defence counsel. The trial judge was in the best position to assess counsel’s sincerity when he maintained that he could not understand why the complainant would go to a doctor. There is no indication that the trial judge’s view on this issue carried over to his assessment of the appellant or the position of the defence. [51] The final incident to which the appellant pointed as giving rise to the appearance of bias occurred during defence counsel’s submissions on sentence. At the outset of the submissions, the following exchange took place between defence counsel and the trial judge (p. 105): Now, the other area of the pre-sentence report which he hasn't really pointed to because I don't think he fully understands it but there are certain references on page 5 to the offender being in a state of denial, implying that he's denying that he did anything wrong and therefore it means that he hasn't fully come to terms with what he has done. And I have to make a distinction between that and I can't argue against the fact that Your Honour has made a conviction. I have to live with that and make submissions to you based on the fact that he has been convicted. But with regard to this issue or this area of whether he's in a state of denial or whether he is not being fully remorseful, I have to point out to Your Honour that there's at least a possibility that he may have been improperly convicted. I don't say that.... The Court: Oh, don't be ridiculous. Don't be ridiculous. You're not assisting him at all by making a submission like that. He's guilty. He's been found guilty. Now, the fact is he won't admit his guilt, so it's going to be very difficult for me to fashion a sentence that would have any rehabilitative effect but it's most improper for you to stand here and suggest that there's a possibility that he may be wrongfully convicted. You can argue that somewhere else. Let's do something constructive. [52] These comments by the trial judge were triggered as a result of clumsy advocacy on the part of defence counsel. There is a difference, which is not so subtle, between submitting to a trial judge that the accused had throughout maintained his innocence and telling the trial judge that there is “at least a possibility that [the accused] may have been improperly convicted”. It was unhelpful of defence counsel to suggest to the trial judge during sentencing submissions that he may have improperly convicted the appellant. The very foundation of sentencing is the assumption that the convicted accused has been found guilty of the crime. [53] The trial judge did not translate the appellant’s denial of guilt into an aggravating factor. He considered that it was a potential mitigating factor that was absent in these circumstances. Once again, the choice of words used by the trial judge was unfortunate, but in the context of the record on sentencing I am satisfied that the comment was of no consequence. [54] In my view, an examination of the record as a whole does not support the submission that the trial judge’s comments jeopardized the fairness of the trial and the appearance of impartiality. The trial judge’s discourteous comments to defence counsel did not carry over outside the isolated incidents referred to above. Although it would have been preferable if the trial judge had not made these comments, they do not support the contention that the trial was unfair or appeared to be unfair. APPEAL AGAINST SENTENCE [55] The appellant was sentenced to five months imprisonment and three years probation. The trial judge recommended the appellant for the temporary absence program. [56] Crown counsel maintained that the sentence, although at the high end of the range for offences of this kind, was not manifestly unreasonable. However, Crown counsel, Ms. Arnup, with her usual fairness, recognized that the sentence had failed to achieve the objective of the trial judge to impose a denunciatory sentence while avoiding the "great tragedy" which would follow from the appellant losing his job. Any sentence longer than an intermittent sentence would result in the loss of the appellant's job. In order to comply with the stated intention of the trial judge, Crown counsel recommended a sentence near the upper end of sentences which could be served intermittently without probation, which according to the pre-sentence report would not serve any purpose. [57] The appellant was sentenced on August 23, 1996 and the conditional sentence regime in the Criminal Code did not come into force until September 1996. The appellant is entitled to the benefit of the new provisions on his sentence appeal. [58] The offence involved a breach of trust with a victim of tender age. It consisted of three brief sexual touchings over the complainant's clothing that happened approximately nine or ten years ago. The conduct did not "escalate beyond fondling". See R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.). Rehabilitation does not appear to be a pressing concern since the appellant has not engaged in similar conduct since approximately 1987. His lack of any other criminal record strongly suggests that he will not re-offend and therefore does not pose any danger to the community. He has complied with all bail orders since he was charged with this offence. [59] In addition, the offence was completely out of character. The appellant has the support of his family, friends and others who know him and he is a productive member of his community. He is gainfully employed and the primary source of income for his family. [60] This is an appropriate case for a conditional sentence. In these circumstances, a conditional sentence is consistent with the fundamental purpose and principles of sentencing. DISPOSITION [61] In the result, I would dismiss the appeal against conviction. I would grant leave to appeal the sentence. I would set aside the sentence and impose a conditional sentence of five months pursuant to s. 742.1 of the Criminal Code. In addition to the mandatory conditions set out in s. 742.3(1), I would impose the condition that the appellant shall not associate with the complainant or her family. The person releasing the appellant shall comply with the provisions of s. 742.3(3) of the Criminal Code. [62] I would continue the order banning publication made at trial, pursuant to s. 486(3) of the Criminal Code. BORINS J.A. [63] I have had the opportunity to read the reasons of Finlayson J.A. and Labrosse J.A. I agree with the reasons of Labrosse J.A. dismissing the appeal from conviction and allowing the sentence appeal. Accordingly, I would decide the appeal as proposed by Labrosse J.A.