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. Subsections 486(3) and 486(5) of the Criminal Code provide:
486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) 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
(iii) 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; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) 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; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Applicant/Appellant) v. R. W. D. (Respondent)
BEFORE:
DOHERTY, SHARPE & JURIANSZ JJ.A.
COUNSEL:
Nadia Thomas
for the respondent on the conviction appeal, applicant/appellant on the sentence appeal
David Reid for the appellant on the conviction appeal, respondent on the sentence appeal
HEARD: June 7, 2005 RELEASED ORALLY: June 7, 2005
On appeal from the conviction entered by Justice Donnelly of the Superior Court of Justice dated May 6, 2004 and the sentence imposed on October 1, 2004.
E N D O R S E M E N T
1The appellant was convicted of two charges of sexual touching. The complainant was his twelve year old stepdaughter. She testified that on the first occasion, the appellant came into her bedroom while she was lying in bed on her stomach. He approached her from behind, pulled down her panties and prodded her with his penis in the area of her vagina and rectum. At trial, she said she could not say whether he penetrated her. The trial judge found that there was no penetration. The complainant testified that on the second occasion, about three weeks later, the appellant came into her bedroom, he kissed her breasts and performed oral sex. The complainant reported the assaults about three days later to her mother.
2The appellant’s semen was found on the complainant’s bed sheets in exactly the location where she described the first incident as having occurred.
3The appellant testified and denied assaulting his stepdaughter. He explained that his wife was pregnant and was not interested in engaging in sexual activity with him and that he masturbated on occasion in different parts of the house. He testified that sometimes he went into his stepdaughter’s room when she was sleeping in another bedroom, lay on her bed and masturbated. It was his evidence that this was how his semen came to be on her bed sheets. The trial judge rejected the appellant’s evidence and particularly his evidence concerning the semen.
4The appellant appeals his conviction. The Crown seeks leave to appeal and if leave is granted, appeals from the conditional sentence of two years less a day imposed at trial.
The Conviction Appeal
5The experienced trial judge gave detailed and lucid reasons for judgment in which he reviewed the evidence, outlined the applicable law, made the necessary findings of fact, and offered explanations for those findings.
6Counsel for the appellant submitted in his factum that the verdict was unreasonable. He wisely did not press that submission in oral argument. The complainant’s evidence standing alone could have supported a conviction. Her evidence did not, however, stand alone. It was supported to some degree by her mother’s evidence and most significantly by the evidence of the appellant’s semen on her bed sheets.
7Counsel for the appellant did argue that the trial judge misapprehended the evidence as it related to the inconsistencies in the complainant’s evidence concerning the details of the two alleged assaults. The trial judge referred to these inconsistencies in some detail in his reasons, outlined the position of the defence and reviewed the complainant’s explanations for the inconsistencies. He ultimately concluded:
I accept as truthful and reliable the evidence of J. M. as it relates to both incidents, subject to this qualification. On March 11th, I do not find sexual penetration of the anus or vagina. I do accept that the accused placed his penis in contact with, and probed, prodded, or pushed in some non-specific and indiscriminant way in the complainant’s genitalia and private areas. In coming to that conclusion, I am mindful of the discrepancies relating to penetration, relating to anus and vagina in the complainant’s telling and retelling of events.
8In our view, it was open to the trial judge to reasonably take the view of the complainant’s evidence and the inconsistencies in parts of her testimony that he did. We see no misapprehension of the evidence, but rather a reasoned rejection of the defence position that the inconsistencies should leave him in doubt as to the complainant’s veracity.
9Counsel for the appellant also argues that the trial judge misapprehended the evidence concerning the complainant’s motive to fabricate the allegations against the appellant. We must reject the submission. Once again, we see no misapprehension, but instead a rejection of the defence position in respect of this evidence. The trial judge outlined the defence position and analyzed the evidence relating to the alleged motive to fabricate. We need not review that analysis. Once the trial judge rejected the appellant’s evidence as to how his semen came to be on his stepdaughter’s bed sheets, the suggestion that she had fabricated her allegation, and had the good fortune to make up a story that placed the assault on the same place on the bed where the semen was found, was wholly untenable.
10The appeal from conviction is dismissed.
The Sentence Appeal
11The trial judge recognized that on the authorities from this court, a conditional sentence is rarely appropriate for an accused who sexually abuses a young child in his care. The trial judge, after careful reasons, however, concluded that the appellant’s circumstances justified a conditional sentence. In coming to that conclusion, the trial judge referred to the following:
the impact of the criminal proceedings and threat of incarceration on the appellant’s mental health;
the appellant’s work record. He had worked all of his adult life until the problems with stress had required him to stop working;
the appellant’s history of support for his several children; and
the appellant’s good character apart from these offences.
12In our view, the first factor relied on by the trial judge was irrelevant. There was nothing to place the appellant’s reaction to the proceedings or his concern about going to jail beyond what one would expect from a person facing the possibility of a significant jail term. The other three factors referred to by the trial judge were important considerations in determining the appropriate sentence and properly mitigated the sentence to be imposed. However, we cannot agree with the trial judge’s assessment that they placed this case into the category of rare offences where a conditional sentence would be appropriate for this kind of crime. It is not unusual for individuals who commit this kind of offence to have jobs or to otherwise be individuals of apparent good character. In our view, the trial judge’s determination that this case justified a conditional sentence demonstrates an error in principle.
13We would grant leave to appeal the sentence imposed. Bearing in mind that a significant part of the conditional sentence has been served, we would impose a period of incarceration of 12 months.
14Crown counsel submitted that in addition to a term of imprisonment, a probation term should be imposed specifically to limit the appellant’s access to children under the age of fourteen. We are not satisfied that we have available to us the information necessary to structure a proper probation term. The trial judge did not impose probation and we are not inclined to do so at this point.
15Consequently, leave to appeal will be granted, the conditional sentence is set aside and a sentence of 12 months incarceration is imposed. There will be no probation order. The other orders made by the trial judge as part of the sentencing will stand.
16If necessary, a warrant for the arrest of the appellant may issue.
“Doherty J.A.”
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.
