R. v. Talbot (G.), (2002) 155 O.A.C. 41 (CA)

• Judge: Laskin, Goudge and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 12, 2001
• Jurisdiction: Ontario
• Citations: (2002), 155 O.A.C. 41 (CA)

R. v. Talbot (G.) (2002), 155 O.A.C. 41 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JA.057

Her Majesty the Queen (respondent) v. Gerald Talbot (appellant)

(C33623)

Indexed As: R. v. Talbot (G.)

Ontario Court of Appeal

Laskin, Goudge and Simmons, JJ.A.

January 17, 2002.

Summary:

The accused was charged on a 17 count indictment with numerous sexual offences against three young teenaged boys and with counselling two of the boys to commit break and enters. A jury found the accused guilty on 16 of the 17 counts. Some of the counts, including three counts of anal intercourse contrary to s. 159 of the Criminal Code, were stayed on the basis of the Kienapple principle. The accused appealed.

The Ontario Court of Appeal quashed the convictions on the three counts of anal intercourse because, subsequent to the accused's trial, s. 159 of the Code had been found to be unconstitutional. The court otherwise dismissed the appeal.

Criminal Law - Topic 693

Sexual offences - Evidence - Recent fabrication of complaint - The accused was convicted of sexual offences against three young teenaged boys - On appeal, he submitted that the trial judge erred in allowing expert psychiatric evidence respecting late disclosure of the sexual abuse because no adverse inference could be drawn from the mere fact that disclosure was delayed - The Ontario Court of Appeal rejected the submission - The expert testified to patterns of disclosure among sexual abuse victims, patterns that included not only delays in disclosure, but also inconsistencies in disclosure and recantations from which adverse inferences could be drawn - Alternatively, no miscarriage of justice occurred - See paragraphs 32 to 45.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was charged with numerous sexual offences against three young teenaged boys and with counselling two of the boys to commit break and enters - He was convicted on 16 of 17 counts - The accused appealed - The Ontario Court of Appeal held that the trial judge erred in his jury charge by stating that the words "reasonable doubt" should be given "their ordinary and natural meaning" and not be considered "as a legal term having some special connotation" - He also erred in not telling the jury that proof beyond a reasonable doubt was more than proof on the balance of probabilities - However, in the context of the jury charge as a whole, it was not reasonably likely that the jury misunderstood the heavy burden of proof on the Crown - The court dismissed the appeal - See paragraphs 23 to 31.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was charged with sexual offences against three young teenaged boys and with counselling two of them (P.G. and M.O.) to commit break and enters - He was convicted on 16 of 17 counts - On appeal, he submitted that the trial judge erred in not giving a "clear and sharp" Vetrovec warning - The Ontario Court of Appeal disagreed - While P.G. and M.O. had checkered pasts, they were both vulnerable, from broken homes, young and living on the street - Given their backgrounds, some history of lying and criminal involvement was not surprising - Their histories did not call their credibility into question to the extent that a "clear and sharp" Vetrovec warning was required - Moreover, the trial judge extensively reviewed for the jury the main parts of their evidence that might adversely affect their credibility - See paragraphs 49 to 53.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - The accused was convicted on numerous counts of sexual offences against three young teenaged boys - He appealed, submitting, inter alia, that the trial judge did not properly instruct the jury respecting an expert's evidence on child sexual abuse - The Ontario Court of Appeal rejected the submission - The trial judge quite properly told the jury that if they accepted the expert's evidence they could take it into account in assessing the complainants' credibility (i.e., in determining whether they had fabricated their evidence) - The trial judge cautioned the jury at least three times that they could not use the evidence to conclude that sexual abuse had occurred - See paragraphs 46 to 47.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 693 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The accused was convicted of sexual offences against three young teenaged boys - Three other witnesses testified that, while in their teens, they met the accused, who plied them with alcohol until they became drunk or unconscious - However, none of those witnesses alleged that he was sexually abused by the accused - On appeal, the accused submitted that this "similar fact evidence" should not have been admitted because, absent an allegation of sexual abuse, the evidence was not sufficiently "similar" and its prejudicial effect outweighed its probative value - The Ontario Court of Appeal dismissed the appeal - While it would have been preferable if the proposed similar fact evidence had been excluded, the trial judge's ruling was not shown to be unreasonable - See paragraphs 49 to 62.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4354 ].

Evidence - Topic 7052

Opinion evidence - Expert evidence - Particular matters - Child abuse - [See Criminal Law - Topic 693 ].

Evidence - Topic 7056

Opinion evidence - Expert evidence - Particular matters - Sexual abuse - [See Criminal Law - Topic 693 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 1].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 2].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 67 C.C.C.(2d) 1, refd to. [para. 2, footnote 1].

R. v. C.M. (1995), 82 O.A.C. 68; 98 C.C.C.(3d) 481 (C.A.), refd to. [para. 21].

R. v. A.S. (1998), 113 O.A.C. 340; 130 C.C.C.(3d) 320 (C.A.), refd to. [para. 21].

R. v. Rhee (D.G.) (2001), 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30 (S.C.C.), refd to. [para. 24].

R. v. Feeley (R.W.) (2001), 149 O.A.C. 204; 156 C.C.C.(3d) 449 (C.A.), refd to. [para. 24].

R. v. Satkunananthan (S.) (2001), 143 O.A.C. 1; 152 C.C.C.(3d) 321 (C.A.), refd to. [para. 25].

R. v. D.D. (2000), 259 N.R. 156; 136 O.A.C. 201; 148 C.C.C.(3d) 41 (S.C.C.), dist. [para. 34].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 35].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200, refd to. [para. 37].

R. v. F.E.J. (1989), 36 O.A.C. 348; 53 C.C.C.(3d) 64 (C.A.), refd to. [para. 37].

R. v. Marquard (D.) (1993), 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 37].

R. v. R.M.M. (1998), 106 O.A.C. 191; 122 C.C.C.(3d) 563 (C.A.), refd to. [para. 37].

R. v. D.B.T. (1994), 71 O.A.C. 233; 89 C.C.C.(3d) 466 (C.A.), refd to. [para. 37].

R. v. Yanover and Gerol (1985), 9 O.A.C. 93; 20 C.C.C.(3d) 300 (C.A.), refd to. [para. 51].

R. v. Brooks (F.A.) (2000), 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 51].

Counsel:

Paul Slocombe, for the appellant;

J. Sandy Tse, for the respondent.

This appeal was heard on December 12, 2001, by Laskin, Goudge and Simmons, JJ.A., of the Ontario Court of Appeal. Laskin, J.A., delivered the following decision for the Court of Appeal on January 17, 2002.