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Convicted on one count of indecent assault, gross indecency and attempted buggery during the period January 1, 1981, to December 31, 1982, of a teenage boy. He was sentenced to five years' in prison. Oziel's sentence was reduced due to his deteriorating health.
* R. v. Tarnovsky, 1995 CanLII 381 (ON C.A.) — (1995), 98 C.C.C. (3d) 168 · (1995), 80 O.A.C. 126
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v.ALAIN OZIEL (Appellant)
BEFORE: HOULDEN, WEILER and LASKIN JJ.A.
COUNSEL: Leo Adler for the appellant
Jamie Klukach for the respondent
HEARD: March 5, 1997
E N D OR S E M E N T
The appellant was convicted by Paisley J., without a jury, of one count of indecent assault, gross indecency and attempted buggery during the period January 1, 1981, to December 31, 1982. He was sentenced to five years' imprisonment for these offences. He appeals both his conviction and sentence.
At the outset of this appeal, counsel for the Crown conceded that inasmuch as the offence known as buggery has been held to be unconstitutional in R. v. M.(C.) (reflex-logo) reflex, (1995), 98 C.C.C. (3d) 481, the appeal with respect to conviction should be allowed and the conviction quashed with respect to this count. We propose to deal with the balance of the issues raied by the appellant seriatim.
1. Did the trial judge err in his findings respecting the time frame and in holding that the time frame was irrelevant?
The trial judge concluded that the complainant was not wrong with respect to the dates that the alleged offence took place. Alternatively, the trial judge held that, in the circumstances of this case, time was not a critical factor and that he was still satisfied about the truth of the complainant's central allegations. The appellant submits that the trial judge erred in finding that the offences took place within the time frame charged and that time is a critical element of the offences charged.
It is well settled that generally the Crown does not have to establish that the offence occurred during the time frame alleged in the indictment. In some situations, such as when an alibi is proffered, time becomes essential. See: R. v. B.(G) 1990 CanLII 115 (S.C.C.), (1990), 56 C.C.C. (3d) 200; R. v. P.(M.B.) 1994, 89 C.C.C. (3d) 289 and R. v. Tarnovsky 1995 CanLII 381 (ON C.A.), (1995), 98 C.C.C. (3d) 168.
The complainant testified that all the incidents, except for one, occurred in the appellant's business premises, North York Graphics, located at 3645 Bathurst Street. The evidence indicated that the appellant's business was incorporated on December 13, 1982. The appellant testified that he worked for a company at another location during the time frame alleged in the indictment. The independent evidence produced by the appellant indicated that he carried on business at 3645 Bathurst Street after the time frame alleged in the indictment. It did not establish that the appellant did not carry on business at 3645 Bathurst Street during the time period covered by the indictment and prior to incorporating his company. It was open to the trial judge to come to the conclusion that the offence occurred during the time frame alleged in the indictment. In any event, we are of the opinion that this is not a situation like Tarnovsky, supra. The appellant's abililty to make full answer and defence was not destroyed. At best the business records established that the events could have taken place during a different time frame, not that they did not occur. The trial judge found that the business records did not raise a doubt in his mind and, in our opinion, he was entitled to do so.This ground of appeal is dismissed.
2. Did the trial judge err in the use he made of the appellant's criminal record?
In his reasons, the trial judge charged himself that he could only use the appellant's criminal record in assessing the appellant's credibility. Notwithstanding this, the appellant submits that the trial judge used the appellant's criminal record as evidence of propensity to commit the offences charged. We do not agree.
In examination-in-chief, the appellant testified that he had pleaded guilty in 1992 to the commission of a sexual assault which took place between 1989 and 1990. Although the trier of fact must always be careful when using a record for the same offence as the offence charged, the trial judge was entitled to use this evidence in considering the appellant's credibility. We would not allow the appeal on this basis.
3. Did the trial judge err in ignoring the contradictions in the complainant's evidence and in the manner in which he dealt with the contradictions between the complainant's and the appellant's evidence?
In R. v. S.(W.) (reflex-logo) reflex, (1994), 90 C.C.C. (3d) 242 this court held that a positive finding of credibility on the part of the complainant is insufficient to support a conviction in a case of sexual assault where there is significant evidence which contradicts the complainant's allegations. Similarly, demeanor alone will not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record: R. v. Norman 1993 CanLII 3387 (ON C.A.), (1993), 87 C.C.C. (3d) 153 at 170-4. The trier of fact must be satisfied both as to the credibility and reliability of the witness before convicting. The appellant submits that, in convicting the appellant, the trial judge proceeded only on the basis of credibility and not reliability.
In our opinion, the trial judge made his determination that the appellant was guilty of the offences alleged in the complaint after considering both the truthfulness and reliability of the complainant and we would not allow the appeal on this basis.
4. Did the trial judge err in rejecting the appellant's version of events without providing reasons for the rejection?
The fact that the trial judge did not specifically articulate his reasons for rejecting the appellant's evidence does not mean that the trial judge misapprehended the evidence or failed to grasp its significance: R. v. Barrett 1995 CanLII 129 (S.C.C.), (1995), 96 C.C.C. (3d) 319 (S.C.C.). The trial judge did address some aspects of the evidence presented by the defence, specifically the documentary evidence, and he concluded that the appellant was nevertheless guilty of the offences charged. We would not give effect to this ground of appeal.
The appeal as to conviction is dismissed.
5. The Sentence Appeal.
It is acknowledged that there was an element of trust to the relationship between the appellant and the complainant. Since the appellant was sentenced he has undergone quadruple by-pass surgery. He is presently 60 years of age. He is no longer working and has been unemployed for some time. The offences took place a long time ago and the trial judge accepted that the appellant was no longer a present danger to the public and that there was no need to consider specific deterrence. The appellant has been ostracized within the Jewish community.
The appellant submits that a penitentiary sentence is not required and that an appropriate sentence would be a conditional sentence which could be served in the community.
The trial judge's sentence was imposed on the basis of general deterrence and denunciation. While we are of the opinion that these are important considerations, we feel that a sentence must also reflect the particular circumstances of the individual. Having regard to the precarious state of the appellant's health, a fit and proper sentence in the exceptional circumstances of this case is the minimum penitentiary sentence. Accordingly, we would grant leave to appeal the sentence, allow the appeal as to sentence and substitute a sentence of two years.
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