R. v. M., D.

R. v. M., D. Collection Decisions of the Court of Appeal Date 1999-05-26 Docket numbers C24438 Judges Finlayson, George Duncan; Austin, Allan McNiece; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990526 DOCKET: C24438 COURT OF APPEAL FOR ONTARIO FINLAYSON, AUSTIN and FELDMAN JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Gregory J. Tweney, for the ) respondent (Respondent) ) ) and ) ) D. M. ) Mark J. Sandler, for the ) appellant (Appellant) ) ) Heard: April 12, 1999 On appeal from the conviction on April 4, 1996, imposed by F.K. Roberts J., sitting with a jury, and from the sentence imposed by Roberts J., dated April 22, 1996. BY THE COURT: [1] The appellant was tried in Toronto before Roberts J. sitting with a jury, on an indictment alleging that he, from August 1, 1992 to December 31, 1994, sexually assaulted the complainant contrary to s.271 of the Criminal Code (count 1); that he, being in a position of trust or authority towards the complainant, a young person, for a sexual purpose invited, counselled or incited her to touch a part of the appellant’s body contrary to s.153 (count 2); and that he, on August 6, 1994, assaulted M.B. contrary to s.266 (count 3). [2] The jury found the appellant guilty on all counts. The trial judge sentenced him to six years imprisonment on the charge of sexual assault and sixty days imprisonment, to be served consecutively, on the charge of simple assault. The charge of sexual exploitation was conditionally stayed. [3] The appellant appeals against the conviction registered against him on the charge of sexual assault. No appeal is taken against the conviction for simple assault. The appellant further applies for leave to appeal and, if leave is granted, appeals against the sentence imposed. Overview [4] The theory of the Crown was that the complainant was sexually assaulted and exploited by the appellant, her mother’s boyfriend, until the appellant’s arrest in August 1994. While the appellant did not testify, it was the position of the defence that serious inconsistencies and inherent implausibilities in the complainant’s own evidence demonstrated that the sexual acts in issue were done with the complainant’s full consent (count 1), and that the appellant was not in a position of trust or authority towards the complainant (count 2). [5] A significant part of the complainant’s claim was that she not only resisted the sexual activity but, to the extent to which she participated, did so out of fear for her own physical safety. In support of the complainant’s position, the Crown was permitted to tender, over the objection of the defence, considerable evidence of the appellant’s alleged physical abuse (on non-sexual occasions) not only upon the complainant, but also upon other members of her family. Some of this alleged physical abuse upon other family members was unwitnessed by and unknown to the complainant. [6] On appeal, the appellant submitted, inter alia, that the trial judge erred in admitting evidence of alleged physical abuse, unwitnessed by and unknown to the complainant. He further submitted that the trial judge erred in failing to instruct the jury, despite objection in this regard, as to the limited use that could be made of the evidence of physical abuse – specifically, that the evidence of physical abuse, even if proven, could not be used as proof that the appellant was the kind of person likely to commit the offences charged. Counsel submitted that other misdirections and evidentiary rulings further contributed to an unsatisfactory verdict. In the alternative, the appellant submitted that the sentence imposed was harsh and excessive in the circumstances. Analysis [7] We propose to deal first with the complaints regarding rulings made by the trial judge in the course of the proceedings. None of them is of any substance. They related to interference with cross-examination and have some technical merit but no practical significance in the last analysis. Trial counsel was able to obtain the information that she considered important although that importance was not demonstrated in this court. This court’s supervisory function should not be exercised by reviewing the minutia of a trial where there is nothing to demonstrate that the trial judge committed reversible error in the exercise of his discretion. [8] The main argument that counsel for the appellant pressed related to the admission of evidence of physical but non-sexual abuse by the appellant directed to other members of the complainant’s family, some of it without the knowledge of the complainant. In order to understand the significance of this evidence it is necessary to set out two sections of the Criminal Code: 153. (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person, is guilty of an indictable offence . . . (2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years. 273.1. (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where … (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; … [9] It is to be noted that the allegation that the appellant was in a position of trust or authority is an essential averment of the charge of sexual exploitation under s.153 and is central to the issue of consent with respect to the charge of sexual assault under s.271 for a complainant 14 years of age or more. Accordingly, evidence that the appellant was the de facto head of the household and that he was not reluctant to exercise his authority is cogent evidence that he was in a position of trust, authority and power with respect to the entire family. Aside from this, it is also relevant to explain the lack of timely reporting of the abuse by the complainant. [10] The only concern raised in this appeal relates to the instruction to the jury of the use that it could make of this evidence. In this case, the trial judge did tell the jury why the evidence of the appellant’s violence towards the complainant’s family members was relevant and they were instructed as to what use they could make of it. Unfortunately, he did not give a companion instruction on what use they could not make of it, notably that they could not make use of evidence of discreditable conduct as proof that the appellant was the sort of person to commit the offences with which he was charged. [11] Counsel submits that this failure to give a complete instruction on the limited use of this evidence of violence, combined with what the appellant perceived as a lack of balance in describing the theory of the defence and the evidence in support thereof, warrants a new trial. We do not agree. [12] While the trial judge should have given the standard warning as to the prohibited use of evidence of violence, we agree with the submissions of the Crown that this and other relatively minor complaints as to the conduct of the trial did not amount to a substantial wrong or miscarriage of justice. Given the concessions that the appellant did live with the complainant’s family for ten years and that he had a lengthy sexual relationship with the complainant when she was between the ages of 14 and 17, the only live issue before the jury was whether the appellant was in a position of trust or authority or power described in ss.153 and 273.1 of the Code. There is an abundance of evidence from which the jury could conclude that the appellant was in such a position of trust, authority or power. The appellant’s trial counsel did attempt to establish through cross-examination that the complainant had consented to the sexual conduct, but if the jury was satisfied that the relationship was within the prohibited range, her consent becomes irrelevant under the sexual assault count and is not available under the sexual touching count. Accordingly, we would invoke the proviso in s.686(1)(b)(iii) of the Code and dismiss the appeal against conviction. Sentence [13] This court has accepted that the range of sentencing for an incestuous relationship between a parent and a young child involving full acts of sexual intercourse is between three to five years in the penitentiary (R. v. B. (1990), 36 O.A.C. 307 (C.A.)). Specifically, the court stated at p.308: The length of sentence within the range of three to five years depends on a number of factors. These include the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, the effects on the victim and the presence or absence of collateral violence or remorse. . . . . This court’s decision in R. v. Tomigo, unreported June 30, 1981, demonstrates that the ordinary range will be exceeded where the circumstances cry out for a more severe penalty. [14] The trial judge in R. v. B. imposed a term of eight years where the accused had commenced having sexual intercourse with his stepdaughter when she was only six years of age and this continued on a regular basis (except when he was in prison) until she was more than fourteen. The accused was a violent man and a heavy drinker with a significant criminal record including the attempted rape of an eight-year-old friend of his stepdaughter during a sexual assault while she was staying at his home overnight. He had two other convictions for assault, two for drinking and driving offences and one conviction for wilful damage, theft and failure to comply with a probation order. This court did not interfere with this sentence on appeal. [15] In the case in appeal, the trial judge imposed a sentence of six years in the penitentiary. While stating that “the facts of this case cry out for the protection of society”, he did not identify what factors took the case out of the ordinary range of three to five years. He did not seem to recognise that the factors he referred required him to impose a sentence within the range. The trial judge erred in principle in this regard. [16] In our view, while this is a serious offence, there is nothing to take it outside of the very serious sentences that are within the range. The range was not suggested as a minimum. Accordingly, in these circumstances we would reduce the sentence to five years in the penitentiary. Disposition [17] For the reasons given, we would dismiss the appeal against conviction, allow leave to appeal sentence and allow the appeal to reduce the sentence of six years to five years. The sentence of sixty days for assault will not be interfered with. Released: May 26, 1999 Signed: “G.D. Finlayson J.A.” “Austin J.A.” “K. Feldman J.A.” _______________________________ 1 Date format is yyyymmdd 2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS