



WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pindus, 2018 ONCA 55

DATE: 20180125

DOCKET: C62679

Laskin and Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Roger William Allan Pindus

Appellant

Matthew Gourlay and Kenneth Grad, for the appellant

Rebecca De Filippis, for the respondent

Heard: November 28, 2017

On appeal from the convictions entered on June 27, 2016
    and the sentence imposed on September 23, 2016 by Justice John A. Desotti of
    the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A.

Overview

[1]

The appellant, Roger Pindus, appeals his convictions for six counts of
    sexual assault and two counts of assault of the complainant, C.R., and his
    sentence of six years in the penitentiary.

[2]

C.R. alleged that Pindus sexually and physically assaulted her over a
    two year period, between 2005 and 2006. When the assaults began, C.R. was 14
    years old; Pindus was 44. C.R. disclosed the assaults in 2013 when she was 22.

[3]

Pindus was tried in 2016 before a judge alone on 14 counts of sexual
    assault, two counts of assault, and one count of unlawful confinement. At the
    time the sexual assaults were alleged to have occurred, the age of consent in
    Canada was 14, not 16 as it is now. Thus, to convict Pindus, the Crown had to
    prove lack of consent beyond a reasonable doubt.

[4]

C.R. gave evidence that, for nearly two years, Pindus sexually and
    physically abused her numerous times. The abuse included many instances of
    forced oral sex and sexual intercourse. She testified that sometimes she would
    resist Pinduss advances by pulling away and telling him to stop. Other times
    she would acquiesce because she felt there was no point in saying no.

[5]

Pindus testified and denied any sexual contact at all with C.R. He
    claimed that C.R. was a love-struck teenager, who fabricated her allegations
    because she was infatuated with him. But Pindus took the alternate position
    that any sexual activity with C.R. was consensual. C.R. had kept a diary in
    which she described her sexual encounters with Pindus. Defence counsel cross-examined
    C.R. on many of her diary entries to try to show that she consented to sex with
    Pindus.

[6]

The trial judge gave lengthy oral reasons. He acquitted Pindus on 8 of
    the 14 counts of sexual assault and the one count of unlawful confinement. He
    held at para. 52 that because of the complainants silence or acquiescence,
    he could not conclude beyond a reasonable doubt that these allegations of
    sexual assault were not consensual. He convicted Pindus on the other six counts
    of sexual assault and on the two counts of assault.

[7]

On his conviction appeal, Pindus accepts that the trial judge was
    entitled to find that sex took place and thus to reject Pinduss primary
    defence that he did not engage in sexual activity with C.R. His appeal instead
    focuses on his alternate position at trial, the question of consent. He raises
    three issues:

1.

Did the trial judge misapply the burden of proof?

2.

Did the trial judge misapprehend the significance of C.R.s diary?

3.

Did the trial judge err by assessing C.R.s testimony according to the
    standard applicable to young persons?

[8]

On his sentence appeal, Pindus submits that the trial judge made two
    errors in principle justifying this courts intervention: he relied on
    inadmissible portions of C.R.s victim impact statement; and he failed to apply
    the principle of parity.

[9]

For the brief reasons that follow I would dismiss both the conviction
    and the sentence appeals.

B.

additional background

[10]

C.R.
    was born in 1991, and grew up in Sarnia, where all the alleged incidents
    occurred. She met Pindus through her friend S.V. S.V. lived with her mother and
    her uncle, Joseph Lamore. Lamore and Pindus were friends, and Pindus often went
    to S.V.s house to see him.

[11]

C.R.
    testified that she first met Pindus in the summer of 2005. He was introduced to
    her by his nickname Dog. Pindus quickly took notice of her. He offered her
    rides on his motorcycle and told her to call him on his cellphone. He told her
    that she was pretty.

[12]

About
    three weeks after they met, Pindus took C.R. on a bike ride, as he had done
    before. But this time he took her to his house. They went inside to his living
    room and sat on the couch. He asked C.R. if he could touch her breasts. She
    said no. Still, he lifted up her shirt and fondled her breasts. He then undid
    her pants, pulled back her underwear, and put his fingers in her vagina. He
    moved his fingers around a couple of times, but stopped when he realized she
    was on her period.

[13]

C.R.
    then stood up and said she wanted to go. She tried to walk away. Pindus grabbed
    her arm, pushed her down onto a chair, and held her there while he undid his
    pants. He exposed his erect penis, and told C.R. he wanted her to put his penis
    in her mouth. She said she didnt want him to. But he pulled her toward him so
    that his penis was touching her lips. She said he was so persistent that she
    opened her mouth. He put his penis inside and told her to suck it. She pushed
    him away and said she wanted to leave. He took her back to S.V.s house.

[14]

From
    this first incident, Pinduss abuse of C.R. escalated. It took place at Pinduss
    house, S.V.s house, and on a few occasions at the house of a classmate of C.R.
    and S.V.

[15]

During
    the time Pindus was sexually assaulting C.R., Lamore was also sexually
    assaulting her. In April 2007, she became pregnant with Lamores child and
    later that year gave birth.

[16]

Eventually
    C.R. underwent counselling, which she said helped her to understand what had
    occurred. In April 2013, she disclosed what Pindus and Lamore had done to her.

C.

The conviction appeal

(1)

Did the trial judge misapply the burden of proof?

[17]

Pindus
    acknowledges that the trial judge correctly stated the Crowns burden of proof
    beyond a reasonable doubt, but argues that he misapplied it. Pindus contends
    that on the issue of consent, the trial judge wrongly took an either/or
    approach to the assessment of the evidence: either Pindus was lying or C.R. was
    lying. He correctly points out that Pinduss evidence could be rejected in its
    entirety, and he could still be acquitted on all counts if on all the evidence
    lack of consent had not been made out beyond a reasonable doubt:
R. v. W.(D).
,
    [1991] 1 S.C.R. 742, at pp. 757-758. In essence, Pindus submits that the trial
    judge did not apply the reasonable doubt standard to the question of consent,
    contrary to
W.(D.)
. In support of his submission, he relies on this
    courts decision in
R. v. J.W.
, 2014 ONCA 322, 316 O.A.C. 395. I
    disagree with Pinduss submission.

[18]

The
    trial judge considered the credibility of both Pindus and C.R. He found at
    para. 47 that, except on one minor and immaterial matter, Pinduss testimony
    was unremarkable and did not display any significant shortcomings.

[19]

But
    the trial judge was favourably impressed with C.R.s evidence and her
    composure under fire (para. 43). He acknowledged the inconsistencies in her
    evidence but found that she did not fabricate or even exaggerate her accounts
    of Pinduss sexual assaults. He concluded at para. 82 that she gave her
    evidence in a most detailed and convincing manner even with some
    inconsistencies with respect to dates, clothing and locations. And he accepted
    that C.R. had numerous sexual encounters with Pindus, some of which were
    non-consensual. He then rejected Pinduss denials.

[20]

Had
    the trial judge stopped there with these findings, Pindus might have had a
    legitimate complaint. A general acceptance of a complainants evidence and a
    rejection of an accused evidence does not exhaust the trial judges duty to
    apply the standard of proof beyond a reasonable doubt. A reasonable doubt can survive
    a finding that the complainant is credible:
J.W.
, at para. 26.

[21]

But
    the trial judge was acutely aware of the reasonable doubt standard, and his
    reasons for judgment show that he applied it. He repeatedly referred to the
    reasonable doubt standard throughout his reasons, and expressly discussed the
W.D.
analysis. Perhaps most compelling, he acquitted Pindus on eight of the counts
    of sexual assault because C.R.s silence or acquiescence on these counts left
    the trial judge with a reasonable doubt on each one. As the Crown points out,
    in acquitting Pindus on these counts, the trial judge applied a more rigorous
    standard on the issue of consent that Pindus was entitled to. But for this
    ground of appeal, the important point about the acquittals is that they
    demonstrate the trial judge did not misapply the burden of proof.

[22]

Also,
    in closing submissions, the trial judge commented to the Crown counsel that he
    would have to wrestle with whether the Crown had satisfied him beyond a
    reasonable doubt:

The Court:  at the end of the day, I mean, that is what we
    really are talking about here, and whether or not was any compulsion on the
    part of the accused with respect to that, if I reject his evidence entirely.

Ms. Stoner: Yes.

The Court: We still have to do the
W.(D).
analysis

Ms. Stoner: Yes

The Court:  as Mr. Marley points out. And his position is even
    if I get to denying the first prong of
W.(D).
and I am prepared to
    reject to the second prong, is there sufficient evidence on the issue of
    reliability on the third prong,
does the Crown satisfy me beyond a
    reasonable doubt. So I have got to wrestle with that
. [Emphasis added.]

[23]

Then,
    on each count, the trial judge considered whether C.R.s evidence proved a lack
    of consent beyond a reasonable doubt.

[24]

Overall,
    the trial judge was faithful to this courts decision in
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.). He rejected Pinduss evidence and
    convicted him based on a considered and reasoned acceptance beyond a reasonable
    doubt of C.R.s evidence. See also:
R. v. R.D.
, 2016 ONCA 574, 30 C.R.
    (7th) 373.

[25]

This
    courts decision in
J.W.
, on which Pindus relies, is a different case
    and does not assist him. In
J.W.
,
the trial judge committed the very error Pindus relies on. He approached the
    evidence of the complainant and the accused in a sexual assault case on an
    either/or basis. He convicted the accused in that case because, even though the
    accuseds evidence was not shaken, the trial judge preferred the
    complainants version and was convinced by it. But he failed to consider
    whether the evidence as a whole raised a reasonable doubt about the accuseds
    guilt or whether the Crown had proved the case against the accused beyond a
    reasonable doubt. The trial judge in
J.W.
erred by failing to apply
    the reasonable doubt standard, which is an essential component of Doherty
    J.A.s reasons in
J.J.R.D.
The trial judge in this case did not commit
    that error. I would not give effect to this ground of appeal.

(2)

Did the trial judge misapprehend the significance of C.R.s diary?

[26]

C.R.
    kept a contemporaneous diary in which she described her sexual encounters with
    Pindus. Although Pinduss main position at trial was a denial of sexual contact
    altogether, his counsel used the diary to cross-examine C.R. on the question of
    consent. Through his cross-examination, he tried to show that in her diary,
    C.R. described consensual sex with Pindus, contrary to her evidence at trial.

[27]

Pindus
    submits that the trial judge cannot convict him without resolving this
    contradiction between C.R.s diary entries and her evidence at trial. He
    contends that the trial judges apparent resolution of the contradiction cannot
    support the convictions because it reflected a misapprehension of C.R.s trial
    evidence.

[28]

The
    trial judge concluded at para. 83 that, in her diary, C.R. did not intend to
    convey what she felt but was describing what had happened through the eyes of
    an inexperienced, troubled and needy 14 year old teenager. Yet at trial, C.R.
    said in response to defence counsels cross-examination: [I]f thats what Im
    saying thats how I felt at the time. Pindus contends that the trial judge
    conclusion  that in her diary C.R. did not mean to convey her true feelings 
    cannot be squared with her evidence at trial.

[29]

I
    do not accept Pinduss contention, as I see no contradiction between C.R.s
    diary entries and her evidence at trial. I make three points in support of my
    conclusion.

[30]

First,
    as I read the diary entries, they did not describe consensual sexual
    encounters; they merely describe sexual encounters. Also, C.R. repeatedly
    explained that her diary did not include all the details of Pinduss assaults,
    and that her age at the time accounted for any misleading language. The trial
    judge accepted her explanation, as he was entitled to do.

[31]

Second,
    C.R.s answer at trial, if thats what Im saying [in the `diary] thats how I
    felt at the time, was not an answer to questions about whether her sexual
    relationship with Pindus was consensual. It was an answer to questions about
    whether she was in love with Pindus. Certainly for a 14 year old having sex
    with a 44 year old, feelings of love cannot automatically be equated with
    consensual sex.

[32]

Third,
    when asked whether her diary described consensual sex with Pindus, C.R.
    repeatedly denied that it did. For example, when testifying at trial about one
    of her entries where she wrote she had sucked [Pinduss] dick, she said: I
    didnt write my feelings. I just wrote down what happened. The trial judge was
    entitled to accept this evidence and to find that the description of the sexual
    encounters in C.R.s diary did not undermine her trial testimony about her lack
    of consent.

[33]

I
    would not give effect to this ground of appeal.

(3)

Did the trial judge err by assessing C.R.s testimony according to the
    standard applicable to young persons?

[34]

C.R.
    was 25 when she testified about the events that occurred when she was 14 and 15
    years old. Nonetheless the trial judge was obligated to assess her evidence
    according to her age when she testified, not her age when the events she was
    testifying about it occurred. In other words, the principle is the following:
    when adult witnesses testify about events that occurred when they were a child,
    their evidence should be assessed by the criteria applicable to adult
    witnesses, not by the somewhat relaxed criteria applicable to child witnesses.
    See:
Kendall v. R
, [1967] S.C.R. 469, at pp. 473-474; and
R. v.
    A.M.
, 2014 ONCA 769,
123 O.R. (3d) 536
, at
    paras. 11 and 25.

[35]

Pindus
    submits that the trial judges reasons show that he violated this principle when
    he assessed C.R.s evidence. His submission rests on a single reference in the
    trial judges reasons to C.R. as a young person. In commenting on the
    reliability of C.R.s evidence, the trial judge said at para. 56:

With respect to the issue of reliability, the following passage
    by the complainant, C.R. in cross-examination perhaps best characterizes some
    of the frailties that exist when a young person testifies in sexual assault
    trials :

I didnt remember saying those
    things because it is hard to tell a stranger all of those things and when
    youre under pressure and uncomfortable its normal to forget or not say it at
    all when you think that you have.

[36]

I
    do not accept that this single reference to young person shows that the trial
    judge applied an incorrect standard for assessing C.R.s evidence. The mere
    mention of young person standing alone does not reflect the application of a
    less rigorous standard. Pindus has not pointed to any aspect of the reasons
    suggesting the trial judge applied a lesser standard to C.R.s evidence.

[37]

As
    the trial judge observed, there were inconsistencies in C.R.s evidence. But
    generally these inconsistencies related to peripheral matters, such as timing
    and sequence. These minor discrepancies could be expected. Also, when an adult
    witness gives evidence about events that took place in childhood, inconsistencies
    and lack of memory have to be considered in the context of the age of the
    witness at the time of the events. Here, the trial judge accepted C.R.s
    explanation that any inconsistencies in her evidence and any inability to
    remember certain things were not the result of dishonesty. They were the result
    of the passage of time and the troubling nature of what C.R. had to testify
    about.

[38]

I
    decline to give effect to this ground of appeal. I would therefore dismiss
    Pinduss conviction appeal.

D.

The sentence appeal

[39]

At
    trial, the Crown asked for a sentence of eight to nine years; the defence
    sought a sentence of two to three years. The trial judge sentenced Pindus to
    six years incarceration, less 33 days for pre-sentence custody. He made the
    usual ancillary orders.

[40]

As
    has been said many times, sentences imposed by trial judges are entitled to
    significant deference on appeal. An appellate court may interfere if the trial
    judge errs in principle but only if the error has an impact on the sentence:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[41]

Here,
    Pindus submits that the trial judge committed two errors in principle
    justifying our intervention. First, he relied on references in C.R.s victim
    impact statement in which she said she suffered from Post-Traumatic Stress
    Disorder (PTSD), even though the Crown did not put forward any expert
    evidence to support this diagnosis or to show her PTSD was connected to Pinduss
    conduct. Second, the trial judge failed to apply the principle of parity set
    out in s. 718.2(b) of the
Criminal Code
, R.S.C. 1985, c. C-46, and
    instead imposed a sentence twice the length of the sentence imposed on
Lamore,

which was three years. I
    would not give effect to either branch of Pinduss submission.

[42]

On
    the first branch, the trial judge did find C.R.s victim impact statement to be
    compelling, poignant, heartfelt, disturbing and reflected the significant
    trauma these sexual encounters occasioned on the physical and mental health of
    this young person. He itemized eight excerpts from her statement. In one of
    the excerpts she is quoted as saying: I have learned through therapy that I
    have [PTSD].

[43]

Even
    accepting Pinduss submission that this excerpt was improperly admitted in the
    absence of an expert diagnosis to support it, the trial judges reasons do not
    suggest that C.R.s description of what she learned in her therapy sessions had
    any impact on the sentence the trial judge imposed.

[44]

On
    the second branch of Pinduss submission he points out that
Lamore
was convicted of several counts
    of sexual assault and assaults on C.R. and that he even fathered a child with
    her, yet received a sentence of only three years. Thus Pindus contends his six
    year sentence violated the principle of parity. I disagree.

[45]

Pindus
    was not entitled to the same sentence as Lamore simply because they both
    sexually assaulted the same victim. The principle of parity does not preclude
    disparity where circumstances warrant it. Pindus and Lamore were sentenced in
    different circumstances. One significant differentiating circumstances was that
    Lamore pleaded guilty and thus had the benefit of this mitigating
    consideration. Even so, if anything his sentence was lenient and does not
    justify reducing Pinduss sentence.

[46]

Moreover
    the overriding principle of sentencing is proportionality: the more serious the
    crime and its consequences, and the more morally blameworthy the offender, the
    more severe the sentence:
Lacasse
,
at para. 12. For Pindus, the principle of proportionality entirely justified the
    fitness of a six year sentence. I can do no better than quote the concluding
    words of the Crowns factum:

Sexual offences against children and teenagers demand lengthy
    penitentiary sentences. The appellants trial counsel acknowledged as much. The
    facts of the appellants convictions were egregious, and the aggravating
    factors numerous. The appellant engaged in an escalating pattern of protracted
    sexual and psychological abuse of a young and vulnerable victim almost 30 years
    his junior. The assaults were violent and demeaning, and the impact on the
    victim was devastating and lasting.

[47]

Although
    I would grant leave to appeal sentence, I would dismiss the sentence appeal.

E.

Conclusion

[48]

I
    would dismiss Pinduss conviction appeal. Although I would grant leave to appeal
    sentence, I would also dismiss his sentence appeal.

Released: J.L. January 25, 2018

John Laskin J.A.

I agree. S.E. Pepall J.A.

I agree. Arthur Gans J.


