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of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with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 (Respondent) –and– J.D. (Appellant)
BEFORE:
LASKIN, GILLESE AND MACFARLAND JJ.A.
COUNSEL:
Irwin Koziebrocki
for the appellant
Alison Hurst
for the respondent
HEARD & RELEASED ORALLY:
December 16, 2005
On appeal from the judgment of Justice F. Graham of the Superior Court of Justice, dated September 7, 2004, made at Whitby, Ontario.
E N D O R S E M E N T
B. THE CONVICTION APPEAL
1We are not persuaded that we should interfere with the trial judge’s credibility findings for these reasons:
Although the Crown’s cross-examination on whether the appellant dated younger women was perhaps not ideal, it was not obviously improper, especially as defence counsel had twice raised the issue. Therefore, we think that the trial judge was entitled to rely on the appellant’s answers as one basis for his adverse credibility finding.
This was not a case where the trial judge gave conclusory reasons for his credibility findings. Instead, the trial judge carefully scrutinized the evidence of both the appellant and the complainant and gave detailed reasons for rejecting the evidence of the former, and accepting the evidence of the latter. These reasons appear well supported in the evidence.
Largely for the reasons given by the trial judge, we agree that there were no major inconsistencies between the evidence of the complainant and that of her sister. Indeed, the complainant’s sister confirmed a critical part of the complainant’s testimony, namely, the complainant’s comment right after the incident to the effect that “dad was all over me.” This comment was a strong piece of inculpatory evidence supporting the conviction. We do not accept the appellant’s submission that this comment might have related to the appellant’s discipline of his children. There is simply no evidentiary support for that submission.
We also do not agree that the complainant’s evidence shows, to use the appellant’s phrase, “a dream that morphed into reality”. That was not the complainant’s testimony. Moreover, the trial judge addressed this issue and expressly found that the complainant had not dreamed this incident.
Finally, we think that the trial judge could fairly rely on the complainant’s statement to Mark Boyle even though it took place years after the incident. This statement was admissible for its truth because it responded to one plank of the appellant’s defence: that the complainant converted a dream into a reality to avoid having to live with her father.
2For these reasons, the conviction appeal is dismissed.
B. THE SENTENCE APPEAL
3On the sentence appeal, clearly a custodial term for this offence was not unreasonable. Moreover, we see no error in principle in the trial judge’s reasons. Therefore, we decline to interfere with the sentence.
4We do, however, wish to add these comments on the fresh evidence that was tendered by the appellant. The fresh evidence came in two parts. One part consisted of affidavits, including an affidavit from the appellant’s former wife, attesting to matters that were before the trial judge, and therefore are not truly “fresh” evidence. We are not inclined to give this affidavit evidence any weight.
5The other part of the fresh evidence was an unsworn, hand-written letter from the complainant asking for leniency. We are unable to give this letter any weight because it is not in proper form, and because we do not know the circumstances under which it was written. We make no criticism, however, of appellant’s counsel for tendering this letter. He did not solicit it, he was taken unaware by it, and he simply tendered it to the panel for our consideration.
6The conviction and sentence appeal are dismissed.
Signed “J.I. Laskin J.A.”
“E.E. Gillese J.A.”
“J.L. MacFarland J.A.”