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| John L. Hill |
T.C. was appealing a global sentence of five years imprisonment: three years imposed for sexually assaulting his wife, S.M., plus two years concurrent for various physical assaults on S.M. and their daughter, A.C. The three physical assaults on the wife consisted of hitting and punching her; two assaults on the young daughter arose from holding a towel over the girl’s face and almost suffocating her while trying to restrain her from crying.
It was a short trial, with only S.M. and her mother testifying before a jury. Crown counsel elicited the information about how T.C. brutally assaulted S.M. both before and after their marriage and during S.M.’s pregnancy. S.M. also described the forceful anal sexual assault perpetrated upon her.
The defence counsel, upon cross-examination, elicited responses that there were other assaults previously undisclosed. She testified her memory of the additional assaults came back to her during cross-examination.
In re-examination, the Crown asked what triggered S.M.’s memory of the uncharged conduct. She replied that
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After the Crown closed its case but before the defence was asked if it had evidence to call, the judge expressed concern that the undisclosed evidence might warrant an instruction that the jury should disregard the new allegations. The defence took the chance to allow examination in the hope that retelling the tale might further weaken S.M.’s credibility.
She had been inconsistent while testifying in chief. Why not let her press on and allow her to give further hard-to-believe testimony? It might be an additional opportunity to elicit inconsistent statements that the defence hoped would undermine the complainant’s credibility. The jury heard the evidence and must have believed S.M. in everything she said.
The jury returned a guilty verdict, and following sentencing, T.C. appealed. Defence argued the trial judge erred in allowing S.M. to be recalled after the Crown closed its case and coupled with failing to link S.M.’s inconsistencies to the charges, the trial was unfair. Further, in sentencing, the trial judge erred in imposing consecutive two six-month sentences for the assaults on the child and consecutive four-month sentences for assaults on the complainant.
T.C. was unsuccessful on each ground raised. The trial judge deserved no criticism for reconsidering her initial ruling that the Crown had not raised any prior discreditable conduct during examination-in-chief. That information was raised for the first time during cross-examination. The trial judge was “clearly considering trial fairness in somewhat dynamic circumstances.” Further, the additional evidence led on the re-opening of the case was limited, and there was no prejudice in having S.M.’s additional comments to be the last the jury would hear from her.
Concerning inconsistencies, the judge had not rendered the trial unfair. The main issue at trial was the credibility of the complainant. The trial judge had referred to identified inconsistencies as the defence had pointed out during her charge to the jury and provided adequate instruction on dealing with them.
The Appeal Court also concluded the sentencing was appropriate. Consecutive sentences rather than concurrent sentences are appropriate. Furthermore, the trial judge is entitled to considerable deference in making that decision. (R. v. Rajkovic, 2021 ONCA 11; R. v. McDonnell, [1997] 1 S.C.R. 948). A five-year sentence was entirely proper, considering the circumstances involved in the assaults upon the two victims.
In hindsight, will defence counsel be left wishing he never led the question eliciting the response that pointed out additional assaults? Perhaps had he known the answer before asking, he could have avoided raising additional facts for a jury to consider.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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