R. v. F., K.

R. v. F., K. Collection Decisions of the Court of Appeal Date 1999-09-13 Docket numbers C27215 Judges McMurtry, Roy; Charron, Louise Vivianne; Moldaver, Michael James Subject Criminal Decision Content DATE: 19990913 DOCKET: C27215 COURT OF APPEAL FOR ONTARIO McMURTRY C.J.O., CHARRON and MOLDAVER JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Umberto Sapone ) for the appellant (Respondent) ) ) and ) Jennifer Woolcombe and ) Susan Reid K. F. ) for the respondent ) (Appellant) ) ) Heard: April 8, 1999 ) On appeal from the conviction by Hugh R. Locke J., with a jury, dated April 9, 1997, and from the sentence imposed on May 9, 1997. McMURTRY C.J.O: [1] The appellant was tried in the Ontario Court of Justice (General Division) by the Honourable Mr. Justice Locke and a jury at the City of Toronto and after a 7-day trial the appellant was convicted of 17 sexual offence counts in relation to three complainants. The appellant was sentenced on May 9, 1997 to a period of 15 months concurrent on each count. [2] The appellant’s appeal is based on the following grounds: (1) Failure of the trial judge to permit the appellant to challenge each prospective juror for cause; (2) Failure of the trial judge to admit into evidence all hospital notes and records pertaining to the complainant H.M.; (3) Failure of the trial judge to comment on Crown Counsel’s address; (4) Failure of the trial judge to instruct the jury on the theory of the case for the defence; (5) Unreasonable verdict. [3] The appellant is seeking to introduce fresh evidence on the appeal. [4] The appellant is also seeking leave to appeal the sentence submitting that the sentence imposed be served in the community. The respondent Crown is seeking leave to cross-appeal the sentence. Challenge of Cause [5] An application was made to challenge every prospective juror on the basis of the nature of the charge. The following questions were proposed. Do you have strong feelings about the issue of rape and violence on young children? If so, what are those feelings based on? Would these strong feelings concerning the rape and violence on young children prevent you from giving Mr. Find a fair trial based solely on the evidence given during the trial of this case? [6] No evidentiary basis was relied on in support of the application at trial. Counsel simply submitted that, given the age of the victims and the number of offences, there was a potential for the existence of partiality. The application was denied. [7] On the appeal counsel for the appellant submits that an “evidentiary base” was established by reason of the fact that one prospective juror indicated that he would have a problem hearing the case because he had two young children of his own and he thought that his feelings about them would influence his attitude towards the case. The juror was challenged peremptorily. [8] In my view, the statement of the prospective juror did not provide evidence of partiality, nor did it show a realistic potential for partiality. The appellant could only succeed on this ground if this court could take judicial notice of a widespread bias in the community in relation to sexual offences of this kind. For the reasons in R. v. A.K. and N.K., released concurrently with this decision, the majority of the court is of the view that judicial notice cannot be taken of that fact. Consequently, the trial judge exercised his discretion properly in refusing to permit the proposed questions. Failure to admit into evidence all hospital notes andrecords pertaining to the complainant H.M. [9] Before the commencement of the trial, the Crown served the defence with a notice of intent to produce certain medical notes and records in evidence pursuant to s. 30 of the Canada Evidence Act. The documents related to the medical examination of the complainant H.M. when the allegations were first investigated by the police in March 1976. Defence counsel sought to have these notes and records admitted in evidence at trial. The trial judge admitted only some of the documents in evidence, ruling that the others were irrelevant to any of the issues and therefore inadmissible. [10] The appellant submits that all of the documents should have been admitted in evidence. In particular, he argues that the notes from one Dr. Lloyd ought to have been admitted because they contained an important notation to the effect that the complainant's hymen was intact upon examination. The appellant submits that the trial judge erred in refusing to admit all of the notes and records for two reasons: 1. When cross-examined on the results of the medical examination, the complainant agreed with counsel's suggestion that the medical records would show that her hymen was broken because she had had intercourse over a hundred times. This cross- examination was conducted prior to the trial judge's ruling on the admissibility of the records. Counsel argues that given the answers of the witness, it became important that the jury see all of the notes including the notation by Dr. Lloyd. 2. The notes were admissible as business records under s. 30 of the Canada Evidence Act. [11] The notes that were ruled inadmissible consisted of Dr. Lloyd's notes of a conversation that he had with the complainant's father. The notes indicate that the father appeared very upset and incoherent. He was blaming the hospital for "covering up the rape of his daughter" by refusing to testify on her behalf. Dr. Lloyd noted that he tried to "straighten him out" on the facts, including "the fact that he had not brought his daughter in for more than a week after the alleged incident and the difficulty in defining medical virginity in terms of an intact hymen". [12] In my view, the trial judge was correct in refusing to admit that part of the records that defence counsel wanted to admit. Those notes were clearly not business records within the meaning of s. 30 of the Canada Evidence Act. As well, in my view, the trial judge was correct in saying that the contents of the particular page in question were irrelevant to the issues that the jury had to decide. It would not assist the jury at all to know what Dr. Lloyd said to the complainant's father. Furthermore, the notes were not at all clear on the issue of whether there was an intact hymen at the time of the March 1976 examination. [13] This ground of the appeal must therefore fail. Admissibility of fresh evidence [14] The appellant seeks to introduce fresh evidence from Dr. Lloyd to clarify the medical records in question. Dr. Lloyd, who was not the examining physician, looked at the medical records and was of the view that they indicated that the hymen was intact. In response to this fresh evidence, the Crown filed fresh evidence of experts who were of the opinion that the state of the hymen is not helpful in determining whether sexual intercourse has occurred or not. This point is essentially conceded by Dr. Lloyd in his cross-examination. In my view, the fresh evidence would not reasonably be expected to have affected the jury’s verdict. The application to introduce fresh evidence is dismissed. Failure of the trial judge to remark on Crown counsel’s address [15] In his address, defence counsel referred to the medical records and stated that they established that the complainant’s hymen was intact. Crown counsel in her address invited the jury to look at the medical records and stated that the defence's conclusion that the hymen was intact was not supported by those records. Defence counsel contends that this was unfair because that suggested that he was inventing this notion of “intact hymen” while in actual fact it could be found in Dr. Lloyd's notes that had not been admitted in evidence. [16] Given my finding that the judge properly exercised his discretion with respect to the admissibility of the notes and records, the question becomes whether this comment by Crown counsel was a fair comment on the evidence that was admitted. [17] I am of the view that the comments by both counsel were fair comments on the evidence that was before the jury and I do not see any error in the trial judge not commenting on the Crown’s address as requested by counsel. Failure to instruct the jury on the theory of defence [18] The charge in relation to the theory of the defence was not extensive and while the trial judge’s review of the evidence was limited, it clearly stated the position of the defence. The issues for the jury to resolve were not complex and turned entirely on their findings as to credibility. The trial judge carefully instructed the jury as to how they ought to approach issues of credibility. [19] It should also be noted that the defence counsel at trial did not make any objections in relation to the adequacy of the charge in relation to the theory of the defence. [20] This ground of appeal must therefore also fail. Unreasonable Verdict [21] Counsel for the appellant on this ground of the appeal is relying primarily on evidence of the complainant D.C. with respect to the fact that she had not been in the appellant’s home during the year of 1963 when it is alleged that the assault occurred. While the complainant D.C. was unsure about the precise dates of the sexual assault, she was clear that the assault took place in the summer when she was 10 or 11. It is therefore clear that when the evidence is viewed as a whole, her evidence is reasonably capable of supporting the verdict in relation to the time frame of the offences. Appellant’s appeal on sentence [22] Appellant’s counsel was advised during the hearing that the court was of the view, given the nature of the convictions in this case, that consideration of a conditional sentence was entirely inappropriate. Leave to appeal the sentence is denied. Crown’s appeal on sentence [23] In my view, the sentence imposed on the appellant was manifestly unreasonable. There were repeated acts of sexual intercourse involving young complainants. Some of the offences were accompanied by threats and violence. In relation to each of the complainants the appellant developed a relationship of trust which he cultivated and systematically abused. [24] The court has repeatedly emphasized that sentences imposed for this type of conduct must reflect the gravity of the offences and give effect to the principles of general deterrence and denunciation. Disposition [25] The appeal against conviction is dismissed. Leave to appeal the sentence is granted to the Crown, the appeal against sentence is allowed and the sentence is increased to a penitentiary term of four years to run concurrently on each count. (signed) "R. McMurtry C.J.O." (signed) "I agree Louise Charron" MOLDAVER J.A. (dissenting): [26] I have had the benefit of reading the reasons of the Chief Justice. With respect to the appeal against conviction, I agree with his analysis and conclusions on all but the challenge for cause issue. [27] On that issue, for reasons given in R. v. A.K. and N.K. (C21487 and C21488), released concurrently with these reasons, I am of the view that the appellant should have been permitted to challenge prospective jurors for cause based on the nature of the crime. He was deprived of that right and it cannot be said that he received a fair trial by an impartial jury. [28] Accordingly, I would allow the appeal against conviction and direct a new trial. (signed) "M. J. Moldaver J.A." Released: September 13, 1999 _______________________________ 1 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS