R. v. A., K.

R. v. A., K. Collection Decisions of the Court of Appeal Date 1999-07-12 Docket numbers C28791 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Rosenberg, Marc Subject Criminal Decision Content DATE: 19990712 DOCKET: C28791 COURT OF APPEAL FOR ONTARIO ABELLA, LASKIN and ROSENBERG JJ.A. BETWEEN: ) ) Michael W. Lacy, HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Jennifer Woollcombe, ) for the respondent K. A. ) ) Appellant ) ) Heard: March 5, 1999 ) On appeal from his conviction by Mr. Justice Robert M. Thompson on April 9, 1997, and the sentence imposed on June 30, 1997 ROSENBERG J.A.: [1] The appellant appeals his conviction and sentence for various sexual offences committed against three complainants during two separate time periods. One set of allegations involves T.H. and relates to events between 1976 and 1982. T.H.’s sister, M.H., gave similar fact evidence in relation to those events. The other set of allegations relates to two complainants, C.F. and J.W., and relates to events between 1992 and 1994. The appellant was convicted by Thompson J. of sexual assault of C.F. and J.W. and indecent assault of T.H.1 Thompson J. sentenced the appellant to forty months' imprisonment concurrent on each count. THE FACTS The complainant T.H. (1975 – 1983) [2] The earliest set of charges concerns T.H. She was 26 years of age when she testified to events that occurred when she was between 7 and 12 years of age. She was born in 1970. The appellant was a half-brother to T.H.’s mother and T.H. therefore considered the appellant to be her uncle. T.H. and her older sister M.H. were frequent visitors at the appellant’s home from 1975 to 1983. According to T.H., M.H., and their mother, this contact ceased abruptly in the summer of 1983 when, in the presence of T.H., M.H. complained to her mother about inappropriate behaviour by the appellant when she had slept over at the appellant’s home. T.H. also said that the appellant made her feel uncomfortable. She did not disclose that the appellant had touched her in a sexual way. No complaint was made to the authorities then. [3] In 1992, when she was living in British Columbia, T.H. complained to the police about child sexual abuse perpetrated upon her by the appellant and two others. At the time, she was undergoing counselling. She did not want to lay charges against the appellant. In 1995, she was approached by the police after the allegations by the other two complainants came to light. The police asked her if she would be a witness for a case involving two other girls who were making allegations against the appellant that were similar to hers. T.H. agreed and the charges were laid. [4] T.H. testified that when she was 7 or 8 years of age and visiting the appellant’s home, he would play a “Dracula” game with her and her sister. The game involved the appellant licking and biting the necks of the two young girls. This “game” continued until the complainant was 12 or 13 years old. The complaint of sexual assault related to an event when the complainant was sleeping over at the appellant’s house. She testified that she went downstairs and found the appellant watching television with the lights out. She lay beside the appellant at his invitation. The appellant then put his hand underneath the back of her pajama top, rubbed her back and put his hand to the front of her top and rubbed her stomach and breasts. He then put his hand down her pants and touched her vaginal area. She could not recall whether the appellant said anything at the time, nor how long the incident lasted. [5] The complainant’s older sister testified to a similar event when she slept over at the appellant’s house. She testified that while she was in the basement of the appellant’s home with him, he pulled her on top of him, placing her back against him. She knew the touching was inappropriate and she was scared. The appellant let her go and she ran out of the house. She returned later and went to bed. The appellant drove her home the next morning and, as indicated above, she told her mother that the appellant had touched her inappropriately, and that she did not want to go to the appellant’s home any more. [6] The complainant gave evidence of one further event that happened when she slept over in the spare room. She awoke to find the appellant lifting her out of the bed. He told her he was taking her to his room. She said that she did not want to go, but he took her anyway. He placed her in his bed and she moved to the edge of the bed. She could not remember whether the appellant left her alone then. [7] The complainant’s mother testified that the appellant and his wife would frequently baby-sit the complainant and her sister, especially after she and her husband separated. The girls often slept over at the appellant’s house in Burlington, when she was working nights. She also testified that if the appellant’s wife was working, the appellant would baby-sit the children by himself. All of the sleepovers occurred when the appellant and his wife were living in the Burlington house. The appellant and his wife testified that the girls never slept over while they had a house, although both recalled the girls sleeping over while they lived in an apartment. The appellant gave somewhat conflicting evidence about his contact with the complainant and her sister. At one point, he testified that he and his wife frequently saw the complainant, her sister and their mother after the mother’s separation. Later in his evidence he testified that the contact was limited after 1979, when they purchased the house in Burlington. [8] There was a discrepancy in the complainant’s evidence as to the timing of the sexual assault. She initially testified that it occurred when she was 7 or 8 years of age. When she was confronted with the fact that the appellant and his wife did not move to the Burlington house until 1979, the complainant testified that she must have been 8 or 9 when the assault occurred. [9] The appellant testified that he would tickle the complainant and kiss her in an “uncle-niece” appropriate way. He denied touching her in a sexual way. [10] After M.H.’s disclosure, the complainant had one more contact with the appellant and his wife. She and a friend went on a trip that had already been arranged to Crystal Beach. There was no further contact between the families. The complainant’s mother testified that she was surprised that she never heard from the appellant and his wife again and that they did not attempt to make contact with her. The appellant testified that he did make several unsuccessful attempts to contact the complainant’s mother. The complainant J.W. (1992) [11] The complainant J.W. was born on February 9, 1987 and was 10 years of age at the time of the trial. One of the issues raised on the appeal is whether she should have been permitted to testify on a promise to tell the truth. I will deal with that issue when I refer to the proceedings respecting her competence. [12] J.W. was a friend of the appellant’s son and her parents were friends with the appellant and his wife. She testified that the appellant would baby-sit her and her brother and sister at the appellant’s home. On one occasion, she was alone with the appellant on his bed watching a movie when the appellant put his hand under her clothing and began to rub her vaginal area. The appellant asked her if he should rub “faster or slower” and she said “faster”. The appellant began to rub faster. The complainant believed that this incident occurred before Christmas while she was in Kindergarten (December 1992). After the incident, she went downstairs to play with the other children. At the time of the incident, her mother and the appellant’s wife were at the store. [13] J.W.’s mother testified that in the spring of 1994, she asked the complainant if anything ever happened between her and the appellant. The complainant said that the appellant had touched her but she would not give any more details and when Mrs. W. pressed her, the complainant said that she was only kidding. On numerous occasions thereafter, she tried to find out from J.W. if something had happened but she insisted that nothing had happened. [14] In 1995, the complainant was approached at her school by a social worker with the Children’s Aid Society. J.W.’s name had been given to Children’s Aid by the third complainant C.F. The social worker asked the complainant if she knew the difference between a good and bad touch and whether she had ever had a bad touch. The complainant said that the appellant had given her a bad touch. However, she refused to say where she had been touched because she was embarrassed. [15] The social worker contacted J.W.’s mother and told her about the disclosure. Mrs. W. asked the complainant about what happened and the complainant said that the appellant had touched her outside of her clothes. A few days later, the complainant said that she wanted to talk more about the incident and she disclosed that the appellant really touched her inside her pants and asked her if she wanted him to go fast or slow. She also said that when she told the appellant to stop, he did so. [16] There was some discrepancy about the timing of the events. The complainant placed the incident at a time when her younger sister was also at the appellant’s home and had already started walking. Other evidence, however, suggested that the younger sister would have been too young to have been walking at the time the incident occurred. [17] The appellant denied the complainant’s allegations. The complainant was frequently at the appellant’s home because she was a friend of his son. He testified that although the complainant may have been watching television in his bedroom, she would have been with one of his sons. The complainant C.F. (1993 to 1994) [18] C.F. was born in February 1987 and was 9 years of age at the time of the trial. She was a friend of the appellant’s son. They were in the same class in kindergarten and Grade 1. She was frequently at the appellant’s home to play with his son. The appellant also had contact with her because he was a volunteer in the classroom. The incidents involving C.F. allegedly occurred in 1993 to 1994. At the time, the appellant was self-employed and working from his home. His business was not doing very well and so he was frequently at home. His wife was a nurse and working at a local hospital. Thus, the appellant was often alone with his sons and their friends during this time. [19] A great deal of evidence concerned the appellant giving special attention to C.F., including giving her little gifts. He would give her these gifts at school or in the basement of his home. He also said things that made her feel special. The complainant’s mother confirmed that C.F. would often come home with little gifts from the appellant. The appellant and his wife confirmed that they often bought little gifts for the children. However, they only acknowledged purchasing one small bracelet especially for the complainant. They testified that the children, including C.F., would help themselves to these trinkets, which were kept in drawers in the dining room and the bedroom. The appellant denied that he treated C.F. much differently from any of the other children who were frequently at his home. [20] C.F. testified that the appellant sexually assaulted her approximately twenty times. The incidents occurred when she came over to play with the appellant’s son and while the appellant’s wife was at work. Her most detailed description was of an incident that occurred when she was in the appellant’s bedroom watching a video called “Rescuers Down Under”. When the other children had left the room to get cookies, the appellant told the complainant to lie down on the bed on her back. The appellant, while fully clothed, rubbed his private part against her vaginal area. She was wearing a bathing suit. After about five minutes, the appellant had the complainant roll over into a crawling position. The appellant then rubbed against her bottom. The appellant also reached underneath her bathing suit with his hand and rubbed her vaginal area. When they heard the other children returning, the appellant stopped. [21] The appellant testified that the VCR in his bedroom was a Beta machine and the “Rescuers Down Under” was in VHS format and could only be shown on the VCR in the basement. In reply, the Crown called the father of the complainant J.W. He testified that the appellant had transferred one or two tapes for him from the Beta to the VHS format. Neither of these tapes was produced at the trial. The appellant agreed that he had several children’s movies in the Beta format. He also agreed that he had attempted to transfer videos from one format to the other but he insisted that he had been unsuccessful. The appellant’s wife confirmed the appellant’s evidence in this respect. [22] C.F. testified that all of the other incidents occurred in the basement. The appellant would have her stay behind while the other children went outside to play. On other occasions, the children would be present but playing with toys on the other side of the room. These other incidents consisted of touching the buttocks or vaginal area underneath her clothing and at times she could feel his finger go insider her. On one occasion, the appellant took her hand and put it on his crotch on top of his clothes. [23] Contact with the appellant ceased the summer before C.F. entered Grade two. The appellant took the complainant and some other children to Bronte Park. During the excursion, C.F. fell and scraped her leg. The appellant picked her up to carry her but she insisted on being put down. When she arrived home, she began to cry. Her mother tried to find out what had happened, but was unsuccessful. However, Mrs. F. decided that her daughter should not go to the appellant’s home again. [24] In April 1995, about a year after contact was broken off, the complainant was walking with her mother when she noticed a van. The complainant said that the van reminded her of the appellant’s van and she began to cry. Mrs. F. asked what was bothering her and she said that the appellant had touched her privates. Mrs. F. contacted a social worker who called the police. Over the next few weeks, C.F. made further disclosure to her mother and made three video taped statements to the police. There were some inconsistencies in the various statements, especially as to the number of incidents. [25] C.F. also told her classmate, the complainant J.W., that she was “abused” by the appellant. J.W. said “me too.” C.F. testified that she did not tell J.W. any of the details of the abuse and did not discuss J.W.’s allegations with her. [26] The appellant denied the allegations by C.F. He did testify that she was frequently at the home and that on many occasions, he would pick her up in his van and bring her to the house to play with his children. THE GROUNDS OF APPEAL [27] The appellant raises the following grounds of appeal from conviction: 1. The trial judge erred in permitting J.W. to give sworn testimony. 2. The verdicts were unreasonable. 3. The trial judge reversed the burden of proof by requiring the appellant to provide explanations for the conduct of others. 4. The trial judge failed to properly apply the burden of proof to issues of credibility. 5. The trial judge erred in rejecting the evidence of the appellant’s wife. [28] The appellant also appeals from the sentence. ANALYSIS The conviction appeal 1. Allowing J.W. to testify under a promise to tell the truth [29] Before the complainant J.W. testified, the trial judge conducted the inquiry required under s. 16 of the Canada Evidence Act, R.S.C. 1985, c. C-5. He determined that the complainant could testify upon promising to tell the truth. It does not appear that the Crown suggested that she could testify under oath. It was clear from the answers given by the complainant in the course of the inquiry that she understood the difference between the truth and a lie. For example, when asked the difference between the truth and a lie, the complainant said, “The truth is when you tell what happened and a lie is when you make it up.” However, the appellant argues that the following portions of the inquiry demonstrate that the complainant did not understand the importance of telling the truth, especially in court. THE COURT: Okay. And is it wrong to tell a lie? THE WITNESS: Yes. THE COURT: Why is it wrong to tell a lie? THE WITNESS: I don’t know. THE COURT: You don’t know? THE WITNESS: No. … THE COURT: Okay. And do you know why somebody should tell [the] truth? THE WITNESS: Because the judge knows what happened. THE COURT: So the judge knows what’s happened. Can you tell me if it’s more important to tell the truth sometimes than it is at other times? THE WITNESS: No. THE COURT: Okay. Is it all right to tell a lie sometimes? THE WITNESS: No. THE COURT: Never[?] THE WITNESS: Well, yes. THE COURT: It is, okay? When is it okay to tell a lie? THE WITNESS: I don’t know. … THE COURT: You don't know. You don't know how important it is to tell the truth. If you were mad at somebody all right, and you wanted to get back at them, would you tell a lie to get them in trouble? THE WITNESS: No. THE COURT: No. Why won’t you do that? THE WITNESS: Because I’d get in trouble. THE COURT: You’d get in trouble from whom? THE WITNESS: My mom and dad. [Emphasis added.] [30] After some submissions from counsel, the trial judge asked the complainant some further questions: THE COURT: And I have to make some decisions in this case all right? Based on what witnesses tell me. Do you understand that? Okay. Do you understand this is a trial, all right? A man is on trial, do you understand that? Okay. Now, do you understand it’s very important that you only tell me the truth so that I can make a fair decision and a proper decision? You have to answer? THE WITNESS: Yes. THE COURT: You understand that? THE WITNESS: Yes. THE COURT: And do you understand it’s very important you only tell me the truth? THE WITNESS: Yes. [31] The accepted test in this province for determining whether a witness is competent to testify under a promise to tell the truth was set out by Doherty J.A. in R. v. Farley (1995), 23 O.R. (3d) 445 (C.A.). He held that the test set out by Robins J.A. in R. v. Khan (1988), 42 C.C.C. (3d) 197 at 206 (Ont. C.A.) in respect of the predecessor legislation applied to the present s. 16(3). Robins J.A. had held as follows: To satisfy the less stringent standards applicable to unsworn evidence, the child need only understand the duty to speak the truth in terms of ordinary everyday social conduct. This can be demonstrated through a simple line of questioning directed to whether the child understands the difference between the truth and a lie, knows that it is wrong to lie, understands the necessity to tell the truth, and promises to do so. [32] Doherty J.A. added the following, at p. 52: In my opinion, the standard enunciated in Khan, supra, at p. 206 should be applied in the present s. 16(3). A proposed witness who can communicate the evidence should be allowed to testify under s. 16(3) only if he or she "understand[s] the duty to speak the truth in terms of everyday social conduct". In the context of a witness called to describe a prior event, an understanding of the duty to speak the truth entails an appreciation by the witness that he or she must answer all questions in accordance with the witness's recollection of what actually happened. [33] In my view, the answers given by J.W. demonstrate that she had the requisite capacity to testify under a promise to tell the truth. Notwithstanding the portion of the examination that I have emphasized above, the entire inquiry showed that the complainant understood that she must answer all questions in accordance with her own recollection of what actually happened. She also knew that it was wrong to lie, even if she did not have any understanding that a lie in court had a special significance. As Robins J.A. held in Khan the complainant understood “the duty to speak the truth in terms of ordinary everyday social conduct.” [34] Counsel for the appellant referred us to the decision of Goldie J.A. in R. v. G. (C.W.) (1994), 88 C.C.C. (3d) 240 at 246 (B.C.C.A.) as setting out a higher standard: The trial judge must be satisfied by some acknowledgment which can be characterized as a promise that the proposed witness understands the difference between truth and falsehood and is committed to the former on this occasion. The promise is to get at the conscience (for want of a better word) of such a witness in a manner intelligible to him or her. This purpose exists notwithstanding the immunity from prosecution for perjury which exists up to the age of 12. Here, there was no completed attempt made to get a hold on the conscience of this child in the manner Parliament has set out. [Emphasis added.] [35] The facts in G. (C.W.) are far removed from this case. In G. (C.W.), the inquiry concerned a four year old child who never answered the judge’s inquiry as to whether she would tell the truth nor what it means to tell “lies or to fib”. The reference to the conscience of the child must, in my view, mean nothing more than a requirement that the child understand what it means to promise to tell the truth. It is not sufficient, in other words, to establish that the child understands the difference between a truth and a lie. The child must also understand what it means to promise to tell the truth. This is the effect of the concurring reasons for judgment of McLachlin J. in R. v. Rockey, [1996] 3 S.C.R. 829. After discussing the requirement under s. 16(3) that the child be able to communicate the evidence, at pp. 845-46, McLachlin J. turned to the question of the requirement that the child promise to tell the truth: However, even if this requirement were met, the case for Ryan testifying would founder on the requirement of s. 16(3), the ability to promise to tell the truth. Dr. Sas's evidence was unequivocal: Ryan did not understand what it meant to promise to tell the truth. I agree with Doherty J.A. in dissent that it is not necessary that the witness be able to define the word "promise" in some technical sense; what is required is that the witness understand the obligation to tell the truth in giving his or her evidence. I respectfully part company from Doherty J.A.'s conclusion, however, that it cannot be said that "a reasonable trial judge would necessarily have found Ryan to be incompetent to give evidence" (p. 667 O.R.). On this point, I share the view of the majority of the Court of Appeal. Ryan, as noted above, did not understand the concepts of truth or lying. Nor could he articulate a promise. "A promise is a promise is a promise, and he could not bring into it the context that is entailed in a promise." The only inference that can be drawn from this evidence is that while Ryan understood the difference between what is "so" and "not so", he had no conception of any moral obligation to say what is "right" or "so" in giving evidence or otherwise. In these circumstances, no judge could reasonably have concluded that Ryan was able to promise to tell the truth. [Emphasis added.] [36] Doherty J.A. expressed this requirement in the excerpt from Farley set out above, that the child must understand that “the duty to speak the truth entails an appreciation by the witness that he or she must answer all questions in accordance with the witness's recollection of what actually happened.” Finch J.A. expressed this requirement in similar terms in another decision of the British Columbia Court of Appeal, R. v. Ferguson (1996), 112 C.C.C. (3d) 342 at 363: It is therefore clear that a child witness who does not understand the nature of an oath or solemn affirmation may be permitted to testify under s. 16(3) only if she promises to tell the truth and, in doing so, understands the difference between truth and falsehood, and understands the duty to tell the truth as to what she saw or recalls. [Emphasis added.] [37] While the complainant was not asked directly if she understood what a promise was, the inquiry established that she understood the duty to tell the truth as to what she saw and what happened to her. Even if she did not understand the consequences of telling a lie, she did understand the requirement to tell the truth. 2. The verdicts were unreasonable [38] The appellant submits that the verdicts were unreasonable and cannot be supported by the evidence. There were some inconsistencies in the accounts given by all three complainants. Those inconsistencies, such as the number of assaults in the case of the complainant C.F., and the timing of the acts in the case of T.H. were, in the circumstances of this case, relatively minor and resolved to the satisfaction of the trial judge. The appellant also submits that the evidence of T.H. was unreliable because she was testifying about memories recovered after counselling. I do not agree with this characterization of T.H.’s testimony. When her testimony is read in context it is apparent that she always had the memories of abuse. Her contemporaneous complaint to her sister and mother supports this view of the evidence. The trial judge carefully reviewed the evidence and concluded that the complainant had not been “assisted” in her memories by “outside influences” and that she had not confused the abuse from the other men with the acts of the appellant. These findings were open on this record. [39] Most of the complaints about the reasonableness of the verdicts turn on the weight to be attached to the contradictory evidence adduced by the defence in the evidence of the appellant and his wife. However, the trial judge was not obliged to accept the defence evidence. In my view, unless it can be said that the trial judge misapprehended the burden of proof or in some other way failed to properly deal with the evidence, these verdicts are not subject to attack. It is therefore necessary to deal with those submissions by the appellant. 3. The trial judge reversed the burden of proof by requiring the appellant to provide explanations for the conduct of others [40] On at least two different occasions in the course of his reasons, the trial judge referred to the failure of the appellant to provide a satisfactory explanation for a cessation of contact between the appellant’s family and the complainant’s family. Thus, in relation to T.H., the trial judge said the following: This witness’ evidence coupled with that of her sister and later that of her mother leads me to the conclusion that all contact between this family and that of the accused and his wife, ceased at the very beginning of the two girls’ teenage years. I find beyond a reasonable doubt that the cessation of the relationship between the two families was because of the unease the two young ladies felt while in the presence of the accused. I might observe at this point that the reasons, given by the accused and his wife, for the parting of these two families did not have a ring of truth. I find their explanation to be reaching at best. [41] In relation to C.F., the trial judge said the following: While the accused need not prove anything, the burden always being with the Crown, the lack of explanation of these occurrences or lack of occurrences weighs against the credibility of the accused. Simply put, it does not make sense that a frequent visitor to the home just stops going there, nor does it make sense that the accused, who had been calling frequently to enquire as to whether [C.F.] could come to his home to play with his son just stops, without any reason. [42] If the proper interpretation of these reasons is that the appellant was required to explain the conduct of other persons, such as the parents of C.F. and T.H., this was an error. Such an approach, in this case, would undermine the presumption of innocence. However, it was open to the trial judge to draw inferences from the appellant’s own conduct. In the case of T.H., the appellant described a course of conduct after contact ceased between the two families that the trial judge found did not have the ring of truth. It is unnecessary to set out that evidence here. Suffice it to say that it was open to the trial judge to reach that conclusion. [43] The comment with respect to contact with C.F.’s family is more problematic since the appellant was never asked why he stopped calling to see if C.F. wished to come to his home. However, in my view, this comment by the trial judge does not undermine his finding that the Crown’s case was made out by proof beyond a reasonable doubt. There was no dispute that the appellant abruptly stopped attempting to contact C.F. and when the whole of the trial judge’s reasons are considered, it is my view that he did not attach undue importance to this fact. 4. The trial judge failed to properly apply the burden of proof to issues of credibility [44] It was not necessary for the trial judge to repeat the formula from R. v. W. (D.), [1991] 1 S.C.R. 742 concerning the application of the reasonable doubt standard to issues of credibility. On several occasions in the course of his reasons, the trial judge referred to the burden of proof beyond a reasonable doubt. He gave reasons for accepting the testimony of the complainants and for rejecting the testimony of the appellant. Notwithstanding the submissions of counsel for the appellant, I have not been persuaded that the trial judge fell into the error of determining credibility based solely on the demeanour of the various witnesses. To the contrary, the trial judge looked at all of the evidence. He analyzed the inconsistencies and contradictions and the reasons offered to explain them. He also looked at the evidence that tended to confirm the testimony of the complainants. In my view, the trial judge properly applied the burden of proof to issues of credibility. 5. The trial judge erred in rejecting the evidence of the appellant’s wife [45] The submission that the trial judge erred in rejecting the evidence of the appellant’s wife is based on the following comment in his reasons: Mrs. A. testified in defence of her husband. I felt sorry for Mrs. A. She is basically a decent, hard-working individual who has been confronted with the fact that her husband has been accused of sexually abusing little girls. Out of loyalty to her husband, and perhaps because she was unable to believe that her husband was capable of such acts, she has defended her husband. I cannot fault Mrs. A. for her loyalty. That loyalty has been misplaced. It was apparent to me that Mrs. A. has put considerable effort into her husband’s defence. She was the one to chronicle the T-ball games, tournaments and holidays. She chronicled her work schedule, etc. Mrs. A. could not believe that her husband had committed the complained-of acts. She did her best to minimize each factual allegation. However, where her evidence is in conflict with other witnesses, I prefer the evidence of those other witnesses. While she may well not have been consciously lying, her evidence was very much influenced by her desire to defend her husband. [Emphasis added.] [46] In R. v. B. (L.) (1993), 13 O.R. (3d) 796 (C.A.), this court held that it is an error for a trial judge to disbelieve the evidence of an accused because he has a motive for not telling the truth, namely that he does not wish to be convicted. At p. 798, Arbour J.A. pointed out that such reasoning is based on the impermissible assumption that the accused will lie to secure his acquittal. Such an assumption “flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused.” Counsel for the appellant submitted that the trial judge did much the same thing here in respect of the evidence of the appellant’s wife, discounting it solely because of her interest in the appellant not being convicted. I do not agree. In B. (L.), Arbour J.A. also held that as a matter of common sense a trier of fact is entitled to take into account a witness’s interest in the outcome of the trial as one factor that may affect the assessment of the credibility. Mrs. A.’s obvious loyalty to the appellant was one factor to consider. It was not determinative and the trial judge did not find that it was. What he did find was that perhaps unconsciously she shaded her evidence out of loyalty to her husband. To the extent that such matters can be determined by the printed words of the transcript, I cannot find that this was an unfair characterization of the witness’s evidence. I have not been persuaded that the trial judge placed undue emphasis on the relationship between the witness and the appellant. Moreover, as the trial judge properly pointed out, on the critical issues Mrs. A. could give little assistance since she was admittedly frequently out of the home and these incidents allegedly occurred when the complainants were alone with the appellant. The sentence appeal [47] The trial judge imposed a sentence of forty months' imprisonment on each count concurrent. With respect to the complainants T.H. and J.W., such a sentence was grossly excessive. However, this court must consider the total sentence imposed. The allegations relating to C.F. were considerably more serious and I cannot find that the trial judge erred in holding that the totality of the conduct involving the three complainants warranted a penitentiary sentence. [48] However, in my view, the trial judge erred in principle in treating the appellant’s continued protestations of innocence as an aggravating factor. The trial judge said the following in his reasons for sentence: The accused proclaimed his innocence at trial and continues to do so to this date. His proclamations of innocence are supported by his wife and a number of others who are quite vociferous in their condemnation of his being found guilty. The accused, his wife, and their supporters, are entitled to their right of denial, however, such a denial in light of the overwhelming evidence to the contrary, shows little insight on the part of the accused to the pain and suffering he visited on these innocent children. He appears to have little comprehension as to the effects his self-gratifying activities have had on his victims or that his actions will continue to affect the development of these individuals throughout their lives. [Emphasis added.] [49] The appellant was not entitled to any reduction in his sentence because of demonstration of any remorse. But, an increased sentence is not justified because the accused has pleaded not guilty, put in motion a full trial, and maintained his innocence: R. v. Kozy (1990), 74 O.R. (2d) 545 at 550 (C.A.). Unfortunately, the trial judge’s comments are open to this interpretation. [50] In my view, a fit sentence in this case is one totaling thirty months' imprisonment, calculated as follows: Indecent assault of T.H., six months' imprisonment; Sexual assault of J.W., six months' imprisonment consecutive; and Sexual assault of C.F., eighteen months' imprisonment consecutive.2 DISPOSITION [51] Accordingly, I would dismiss the appeal from conviction. I would grant leave to appeal sentence, allow the appeal from sentence, and reduce the sentence to a total of thirty months' imprisonment as follows: count #3, six months' imprisonment; count #1, six months' imprisonment consecutive; and count #4, eighteen months' imprisonment consecutive. (signed) "M. Rosenberg J.A." (signed) "I agree R. S. Abella J.A." (signed) "I agree J. I. Laskin J.A." RELEASED: July 12, 1999 _______________________________ 1 The appellant was found guilty of all six counts charged, but provisional stays of proceedings were entered on the counts of sexual interference and invitation to sexual touching in relation to the complainants J.W. and C.F. 2 It may be that the acts involving C.F. would on their own warrant a somewhat higher sentence, if they stood alone. However, some consideration must be given to totality: Criminal Code, s. 718.2(c).