R. v. Betker (A.), (1997) 100 O.A.C. 81 (CA)

• Judge: McMurtry, C.J.O., Osborne and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 22, 1997
• Jurisdiction: Ontario
• Citations: (1997), 100 O.A.C. 81 (CA);1997 CanLII 1902 (ON CA);1997 CanLII 1902 (NS CA);33 OR (3d) 321;115 CCC (3d) 421;7 CR (5th) 238;[1997] OJ No 1578 (QL);100 OAC 81;34 WCB (2d) 369

R. v. Betker (A.) (1997), 100 O.A.C. 81 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Adolph Betker (appellant)

(C20698)

Indexed As: R. v. Betker (A.)

Ontario Court of Appeal

McMurtry, C.J.O., Osborne and Moldaver, JJ.A.

April 22, 1997.

Summary:

The accused was convicted by judge and jury of one count each of indecent assault, gross indecency and incest. He was sen­tenced to four years' imprisonment. The accused appealed the conviction and sen­tence.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 673

Sexual offences, rape or sexual assault - Jury charge - The accused was convicted by judge and jury of sexual offences in­volving his daughter - The offences al­legedly occurred between 1957 and 1969 when the daughter was between 5 and 17 years old - The accused appealed, arguing that the trial judge erred in failing to warn the jury of the need to proceed with cau­tion before acting upon the complainant's testimony (i.e., a special warning was required because of the age of the charges and the fact that the case for the Crown rested essentially upon the complainant's word over that of the accused) - The Ontario Court of Appeal noted that such a caution was discretionary and the judge made no error in this case - See para­graphs 17 to 20.

Criminal Law - Topic 673

Sexual offences, rape or sexual assault - Jury charge - The accused was convicted by judge and jury of sexual offences in­volving his daughter - The offences al­legedly occurred between 1957 and 1969 when the daughter was between 5 and 17 years old - The accused appealed, arguing that the trial judge erred in instructing the jury that portions of the complainant's mother's testimony tended to confirm the complainant's evidence - The Ontario Court of Appeal held that the trial judge did not err in instructing the jury as he did, and even if he did, the error was harmless - See paragraphs 21 to 25.

Criminal Law - Topic 4312

Procedure - Jury - Impartiality - In his opening remarks to the jury panel called for a sexual assault trial, the trial judge described the nature of the allegations and invited prospective jurors to identify them­selves if they felt they could not be impar­tial - The Ontario Court of Appeal stated that the trial judge had no authority to prescreen the jurors as he did, but the error was harmless and caused no prejudice to the accused - See paragraphs 99 to 107.

Criminal Law - Topic 4312

Procedure - Jury - Impartiality - [See Criminal Law - Topic 4316 ].

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The accused was convicted by judge and jury of sexual offences involving his daughter when she was between 5 and 17 years old - The accused appealed, arguing that he should have been allowed to chal­lenge each juror for cause on the basis that there existed a realistic possibility that because of the nature of the charges, one or more of the prospective jurors would not be impartial between the Crown and the accused - The Ontario Court of Appeal rejected the accused's argument - See paragraphs 42 to 107.

Criminal Law - Topic 4375.2

Procedure - Jury charge - Directions regarding prior inconsistent statements - During a sexual assault investigation, a police officer made handwritten notes of his telephone conversation with the com­plainant's aunt and typed a will-say state­ment from those notes - At trial, the judge marked the notes and statement as exhibits notwithstanding that they were inconsistent with the aunt's testimony - The accused was convicted and appealed arguing that the trial judge erred in failing to properly instruct the jury on the limited use which could be made of the notes and statement - The Ontario Court of Appeal rejected this ground of appeal - See paragraphs 30 to 41.

Criminal Law - Topic 5576

Evidence and witnesses - Exhibits - Use of - During a sexual assault investigation, a police officer made handwritten notes of his telephone conversation with the com­plainant's aunt and typed a will-say state­ment from those notes - At trial, the judge marked the notes and statement as exhibits, notwithstanding that the relative gave different testimony and had refused to sign the will-say statement - The accused was convicted and appealed arguing that the trial judge erred in marking the statement and notes as exhibits - The Ontario Court of Appeal held that the trial judge did not err in marking the statement and notes as exhibits, but having done so, should have cautioned the jury against placing undue emphasis on them, although this failure was minor and occasioned no substantial wrong or miscarriage of justice - See paragraphs 26 to 29.

Criminal Law - Topic 5576

Evidence and witnesses - Exhibits - Use of - [See Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 5856

Sentence - Indecent assault - The accused was convicted of one count each of inde­cent assault, gross indecency and incest involving his daughter - The offences occurred between 1957 and 1969 when the daughter was between 5 and 17 years old - The accused was sentenced to four years' imprisonment - He appealed the sentence arguing that it was harsh and excessive considering his age (68) and his poor health, the offences took place over 25 years ago and he had no other difficulties with the law - The Ontario Court of Appeal found no basis for interfering with the sentence - See paragraphs 108 to 110.

Criminal Law - Topic 5863

Sentence - Incest - [See Criminal Law - Topic 5856 ].

Criminal Law - Topic 5905

Sentence - Gross indecency - [See Crim­inal Law - Topic 5856 ].

Cases Noticed:

R. v. Adams (J.R.) (1995), 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161; 103 C.C.C.(3d) 262 (S.C.C.), refd to. [para. 4].

R. v. Vermette (1988), 84 N.R. 296; 14 Q.A.C. 161; 41 C.C.C.(3d) 523 (S.C.C.), refd to. [para. 50].

R. v. Hubbert (1975), 15 N.R. 143; 29 C.C.C.(2d) 279 (C.A.), affd. [1977] 2 S.C.R. 267; 15 N.R. 139; 33 C.C.C.(2d) 207, refd to. [para. 50].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), leave to appeal refused [1994] 1 S.C.R. x; 175 N.R. 321; 72 O.A.C. 159, refd to. [para. 50].

R. v. Cameron (H.) (1995), 80 O.A.C. 58; 96 C.C.C.(3d) 346 (C.A.), refd to. [para. 50].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161; 63 C.C.C.(3d) 193; 3 C.R.(4th) 129, refd to. [para. 50].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 632 [para. 104]; sect. 638(1)(b) [para. 42].

Authors and Works Noticed:

Paciocco, David, Challenge For Cause in Jury Selection After Regina v. Parks: Practicalities and Limitations, pp. 22 [para. 88]; 24, 25 [para. 89].

Roach, Kent, Challenges For Cause and Racial Discrimination (1995), 37 C.L.Q. 410, generally [para. 87]; pp. 414, 415 [para. 68]; 416 [paras. 68, 97].

Skurka, A Survey of Comments of Polled Jurors During Challenges for Cause, generally [para. 45].

Skurka, A Survey of 12 Sex Abuse Cases, generally [para. 45].

Vidmar, N., Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials (1997), 21 Law and Human Behav. 6, generally [para. 56]; p. 6 [para. 73].

Counsel:

Martin Kerbel, Q.C., for the appellant;

Susan Reid, for the respondent.

This appeal was heard on January 14 and 15, 1997, before McMurtry, C.J.O., Osborne and Moldaver, JJ.A., of the Ontario Court of Appeal. Moldaver, J.A., released the fol­lowing judgment for the court on April 22, 1997.