R. v. M., M.

R. v. M., M. Collection Decisions of the Court of Appeal Date 1999-07-13 Docket numbers C24777 Judges Osborne, Coulter Arthur Anthony; Weiler, Karen Merle Magnuson; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990713 DOCKET: C24777 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) –and– M. M. (A Young Person) (Appellant) BEFORE: OSBORNE A.C.J.O., WEILER and FELDMAN JJ.A. COUNSEL: Russell S. Silverstein and Lisa Freeman, for the appellant Gillian Roberts for the respondent HEARD: July 5 and 6, 1999 On appeal from the conviction imposed by Otter P.C.J. dated November 30, 1995. ENDORSEMENT [1] Following a trial before a judge alone, the appellant, age 17 at the time, was found guilty of incest with his half-sister who was then 7 years old. He was sentenced to 15 months closed custody and 3 months open custody. He has served his entire sentence. This appeal is with respect to his conviction. [2] The appellant raises two grounds of appeal based on the ineffective assistance of trial counsel. They are: (i) a miscarriage of justice ensued when medical evidence capable of undermining the complainant’s credibility was not adduced; (ii) the appellant’s right to a fair and impartial hearing pursuant to s.11(d) was infringed as there was a reasonable apprehension of bias arising from the fact that the trial judge had presided over the pre-trial where an early guilty plea was on the agenda. [3] The appellant sought leave to introduce fresh evidence in relation to these grounds of appeal. First Ground of Appeal: [4] The appellant was convicted on the evidence of the complainant alone. In her statement to the police, the complainant said that the appellant put his private in her private on many occasions and that it hurt. At trial, she said that he touched his private, meaning his penis, to her private. In describing her “private” the complainant referred to her crotch and her “regina”. She also stated that the appellant told her “to lick his private part”. [5] In his reasons convicting the appellant, the trial judge referred to what had taken place as “full blown rape”. The position of the appellant is that defence counsel should have introduced expert medical evidence concerning the fact that the complainant’s hymen was intact as well as the condition of her genitalia and that such evidence would likely have affected the outcome at trial. [6] On May 24, 1995, Dr. Mian conducted a physical examination of T. M. who attended at the Suspected Child Abuse and Neglect Program at the Hospital for Sick Children. Dr. Mian concluded that the physical examination was non-specific for irritation (bump). In Dr. Mian’s opinion, the physical examination of the complainant’s genitalia was neutral, in that it revealed nothing to indicate or rule out penetration. She noted that there were two bumps on the vagina which were consistent with sexual abuse as well as with a number of innocent explanations. Dr. Mian’s report was not tendered as evidence at trial. [7] If Dr. Mian’s evidence had been introduced at trial, it would not have been entirely supportive of the defence position that the evidence of the complainant was unreliable and no penetration had ever taken place. The appellant’s trial counsel used the absence of corroborative medical evidence to attack the credibility of the complainant at trial and to suggest that there was insufficient evidence on which the trial judge could convict the appellant. This was a reasonable tactical approach and, in our opinion, does not reflect negligence on the part of counsel. That said, this court has repeatedly said that reasonable tactical decisions by trial counsel should not be revisited. On this basis alone, we would refuse to admit the fresh evidence. We will, however, go on and deal with the proposed fresh evidence on its merits. [8] In response to the fresh evidence application, the Crown filed an affidavit by Dr. Mian. She was cross-examined on it and it is this cross-examination that the appellant seeks to introduce as part of the fresh evidence. In her cross- examination, Dr. Mian agreed that, in one study where offenders admitted penile penetration of the victim’s vagina, there was permanent damage to the hymen in 75-85% of the cases. The appellant’s position is that this evidence, if admitted, might have created a reasonable doubt as to whether penetration took place. Given that the victim’s description could be viewed as a description of penetration, this evidence could raise a reasonable doubt as to her credibility and therefore, whether any touching took place at all, let alone sexual intercourse. [9] In her cross-examination, Dr. Mian also cited a number of articles in support of her opinion that a young girl could be sexually abused on a number of occasions but have no evidence of lasting trauma on her hymen or vaginal area. Apparently this is because a young child often does not distinguish between penetration of the labia and of the hymen. In cases where child abusers have admitted penile penetration of the vagina, the sample size is small and further studies are necessary. In one study of ten cases, two of the ten cases showed no damage to the hymen and two cases resulted in no findings. In another study of confirmed penile penetration, 15-25% of the cases resulted in no findings. Dr. Mian repeatedly warned of the dangers of intuitive thinking. She did not resile from her opinion that a young girl who has been sexually abused may not have any signs of trauma to the hymen. [10] The appellant also seeks to admit as fresh evidence the evidence of Dr. Joseph Jacobs to the effect that repeated acts of sexual intercourse on a child of T. M.’s age would have resulted in some form of visible damage to the hymen. In cross- examination, Dr. Jacobs knew of no studies that supported his opinion and admitted that he did not practice actively in this area. [11] The proposed evidence, if admitted, could not reasonably have been expected to have affected the result at trial. It was not necessary to establish that full penetration occurred in order to find that a sexual assault occurred and that the crime charged had been committed. Although the trial judge found that there had been “full blown rape”, or sexual intercourse, he correctly instructed himself that penetration to the slightest degree was all that was required. The appellant did not testify at trial. Having regard to all of the circumstances, the proposed fresh evidence does not meet the criteria for the admissibility of fresh evidence. The first ground of appeal is dismissed. Second Ground of Appeal: [12] Otter P.C.J. presided over the July 7, 1995 pre-trial where a possible resolution of the charges by way of an early guilty plea was discussed. Otter P.C.J. indicated he would require a pre- disposition report before determining sentence. Implicit in this discussion was the possibility that the appellant might plead guilty to one or more of the offences with which he was charged. Although the matter was set for a guilty plea before Otter P.C.J., it was adjourned for trial when the appellant changed his mind about the plea. Although a different judge was scheduled to preside at trial, on the date of the trial, the matter was brought before Otter P.C.J. and he presided. The appellant submits that the failure of trial counsel to object to Otter P.C.J. presiding over the trial amounted to ineffective assistance of counsel. [13] The appellant further submits that a reasonable apprehension of bias arose. The appellant instructed his counsel to canvass an early guilty plea; this would have been evident to Otter P.C.J. The appellant submits that a reasonable person fully informed might well conclude that, at trial, the appellant’s plea of not guilty was tainted by the implication at the pre-trial that he would plead guilty if the conditions were right. [14] It does not appear that any position was taken or information divulged that constrained the parties in their presentation of the case at trial. There is no suggestion that Otter P.C.J.’s participation in the pretrial inhibited the appellant’s defence or affected his decision as to whether or not to testify. [15] One of the appellant’s co-counsel said that when he found out that Otter P.C.J. had presided over the pretrial and was the presiding judge “we were okay with it.” This was a judgment call that counsel were entitled to make and not ineffective assistance of counsel. [16] An allegation of reasonable apprehension of bias is a serious one. Apprehension of bias requires a demonstration that the grounds for this apprehension must be substantial, that a real likelihood of bias exists and that a mere suspicion is not enough: R. v. S. (R.D.) (1997) 118 C.C.C.(3d) 353. Delay in raising an apprehension of bias can, in some circumstances, be indicative that the grounds lack substance. In any event, delay will make it more difficult for accurate evidence to support or rebut the allegation to be obtained. In this case, three years elapsed before the ground of appeal was raised. It is submitted that the information necessary to raise the ground did not come to appellate counsel’s attention until then. Having regard to the opinion of the appellant’s trial co-counsel, a reasonably informed person in the position of the appellant would have had no reasonable apprehension of bias on the part of Otter P.C.J. [17] The appeal is dismissed. “C.A. Osborne A.C.J.O.” “K.M. Weiler J.A.” “K. Feldman J.A.”