Accused seeks leave to introduce fresh evidence in support of sentence appeal
In a recent indecent assault case, the trial judge of an Ontario court noted that the complainant did not embellish her evidence when explaining why he found her evidence compelling and convincing.
The complainant alleged three incidents where the appellant sexually abused her when she visited his family home between November 1980 and December 1982. The complainant was then between 10 and 13 years old, while the appellant was then between 18 and 20 years old. Both parties were Indigenous. The appellant denied sexually touching the complainant.
Justice Edward Gareau of the Ontario Superior Court of Justice convicted the appellant of indecent assault under s. 149(1) of the Criminal Code. He found beyond a reasonable doubt that the appellant acted as the complainant alleged in the first and third incidents.
The trial judge considered the appellant’s evidence rehearsed, unbelievable at points, difficult to accept, and lacking the ring of truth. On the other hand, he found the complainant’s evidence compelling, convincing, and consistent. The complainant made no embellishments or exaggerations, committed to things only if she had a specific memory of them, and admitted facts even if they were not helpful to her side, he said.
The judge ruled that the evidence of the complainant’s brother corroborated much of her evidence and placed the appellant and the complainant alone together in the appellant’s family home. The judge expressed concern over the “self-serving nature” of much of the evidence of the appellant’s sister.
The judge imposed an 18 months’ imprisonment sentence. A conditional sentence could not achieve the objectives of denunciation and deterrence, given the particular offence and the particular offender, he said.
The appellant brought conviction and sentence appeals. He also filed an application under s. 683 of the Criminal Code seeking leave to introduce fresh evidence in support of his sentence appeal. The proposed fresh evidence included a Gladue report prepared after the imposition of the sentence.
Fresh evidence admitted
In R. v. B.S., 2023 ONCA 6, the Ontario Court of Appeal admitted the fresh evidence, granted leave to appeal sentence, and dismissed the sentence and conviction appeals.
First, the appellate court accepted that the trial judge did not use the word “reliability” in his reasons but said that it was not a requirement to do so. The judge carefully scrutinized the evidence relating to the believability of the complainant’s evidence, including by considering any truthfulness and accuracy concerns, the court said.
Second, the Court of Appeal held that the judge made no errors in rejecting the appellant’s evidence. Rather than rejecting the appellant’s evidence because he gave a flat denial, the judge rejected it for being rehearsed, unbelievable, difficult to accept, lacking the ring of truth, and incredible, the court explained.
Third, the appellate court determined that the judge did not use the complainant’s lack of embellishment to bolster her credibility and did not commit the error made in R. v. Alisaleh, 2020 ONCA 597, where the judge deemed the lack of embellishment an important factor for enhancing the complainant’s credibility.
Next, the Court of Appeal found the fresh evidence admissible. The court noted that it was unlikely for the Gladue report to satisfy the test for admitting fresh evidence in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, given that nothing in the record suggested that a Gladue report could not be obtained at sentencing through the exercise of due diligence.
Lastly, the appellate court found no basis to interfere with the imposed sentence. The judge carefully weighed the relevant considerations, including the aggravating and mitigating factors, the appellant’s Indigenous status, the escalating nature of his acts, the age disparity, the victim’s vulnerability due to her age, and the effect of the abuse on her, the court concluded.
