R. v. B.(R.W.), 2003 CanLII 48260 (ON CA)

W A R N I N G

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

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s.486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

1.the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.

DATE: 20030731

DOCKET: C37416

COURT OF APPEAL FOR ONTARIO

McMURTRY C. J.O., ARMSTRONG J.A. and BLAIR R.S.J. (ad hoc)

B E T W E E N:

HER MAJESTY THE QUEEN

Alan D. Gold and Maureen McGuire

for the appellant

Respondent

• and -

R. W. B.

Jennifer Woollcombe

for the respondent

Appellant

Heard: June 9, 2003

On appeal from the conviction imposed by Justice R. Haines for the Superior Court of Justice dated November 30, 2001 and the sentence dated February 28, 2002.

BY THE COURT:

[1]

Appeal from Conviction

The trial judge emphasized throughout his reasons that the onus rested upon the Crown to prove the guilt of the appellant beyond a reasonable doubt. In considering the guilt or innocence of the appellant, he stated that:

The court should proceed with caution in assessing testimony about distant events and approach the evidence with healthy skepticism.

2In our view, there is no obligation on the trial judge to deal with each and every inconsistency. It is not necessary that the evidence be microscopically analyzed.

3The appellant’s counsel emphasized the fact that the trial judge did not give sufficient consideration to the emphatic denials by both the complainant and the appellant during the period of time that the alleged sexual assaults occurred.

4In our opinion, the trial judge gave adequate consideration to the submissions of the highly experienced trial counsel in relation to both the absence of detail in relation to the circumstances surrounding the assaults and the vehement denials of both the complainant and the appellant.

5The evidence adduced at trial took place between 13 and 17 years before the trial. In our view, it is not surprising that the complainant would be vague about many of the surrounding circumstances.

6With respect to the complainant’s denials of the activities, by the time that the complainant was first confronted with the activities between him and the appellant, the appellant was well aware that others would view those activities as wrong and that he would be considered to be gay which he was not prepared to accept.

7In R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 at 320 and R. v. Branch (2002) 162 C.C.C. (3d), the Supreme Court of Canada provides some guidance as to how complaints of insufficiency of reasons should be assessed:

A trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e. a decision which having regard to the particular circumstances of the case is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.

8In our opinion, the reasons given by the trial judge are considered, intelligible and responsive to the issues raised in the trial.

9The role of a trial judge as a listener and observer of the evidence cannot be overstated. The trial judge is in the best position to make findings with respect to the credibility and reliability of the witness and therefore appellate courts must be deferential to the assessment of credibility made at trial.

10It is therefore our conclusion that the appeal as to conviction must be dismissed.

[11]

Appeal from Sentence

With respect to the sentence imposed by the trial judge, we do not find that the trial judge committed any error in principle in declining to impose a conditional sentence. We are of the view that conditional sentences should be rarely imposed in cases of sexual touching of children by adults, particularly when the conduct is repeated over a number of years and where the sexual violation is of a vulnerable person by a person in a position of trust.

12Leave to appeal sentence is allowed but the appeal as against sentence is dismissed.