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:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
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.
COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., DOHERTY and MACPHERSON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
John A. Neander
for the respondent
(Respondent)
- and -
R. F.
Jeanine E. LeRoy
for the appellant
(Appellant)
Heard: November 6, 2006
On appeal from the conviction entered on November 15, 2004 and the sentence imposed on March 11, 2005 by Justice Dougald R. McDermid of the Superior Court of Justice, sitting with a jury.
BY THE COURT:
1Following a trial before McDermid J. sitting with a jury, the appellant was convicted of sexual assault. He was sentenced to three years imprisonment. He appeals against both the conviction and the sentence. The principal evidence in the case was that of the eleven year old complainant, S.R., who testified at trial. In addition, pursuant to s. 715.1 of the Criminal Code, a videotape of an interview of S.R. conducted by a children’s aid worker and a police officer was entered as an exhibit and admitted for the truth of its contents.
2The core of the complainant’s evidence was that during the early part of 2003, when the complainant was nine years old, the appellant, whom she described as her “step‑dad”, committed against her a series of acts of sexual misconduct, including intercourse. The Crown also called evidence by the police officer and children’s aid worker who interviewed the complainant and by a family friend to whom the complainant told her story about the alleged sexual activity.
3The appellant did not testify, nor did the defence call any other evidence at the trial.
4The appellant advances two arguments on the conviction appeal: (1) the jury’s verdict was unreasonable; and (2) the trial judge erred in his treatment of the jury’s request that part of the video of the complainant’s interview be played back.
Unreasonable verdict
5There is a heavy burden on an appellant who seeks to establish that a verdict, including a jury verdict, was unreasonable: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.) and R. v. Francois (1994), 1994 52 (SCC), 31 C.R. (4th) 201 (S.C.C.). The test in a jury case is “whether the verdict is one that a properly instructed jury, acting judicially, could have rendered”: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at 185.
6In this appeal, there is no issue concerning the “properly instructed jury” component of the test; the appellant does not attack any portion of the trial judge’s jury charge, which he describes as “exemplary”. The only issue is whether the jury’s verdict was unreasonable in spite of the trial judge’s excellent charge.
7The principal evidence at trial was that of the young complainant. The appellant points to clear inconsistencies between what she said in the interview, where she gave a full description of a substantial amount of sexual activity with the appellant, and her testimony at the preliminary inquiry and the trial, especially in cross‑examination, where she could not remember some events and denied that others had taken place (e.g. anal sex).
8The appellant also relies on what the trial judge said about the complainant’s evidence in his jury charge. He said that the complainant’s evidence “is not only inconsistent but quite contradictory about the very subject matter of these charges.” He continued:
Also, I suggest that there are very real risks in accepting her testimony about her allegations against [the appellant] unless you find some evidence independent from her testimony in court and what she said on the videotape that support what she said. It is for you to decide, but I recall no such independent evidence to support her allegations. Therefore, in my opinion – it is your opinion that counts – but in my opinion, it would be dangerous for you to find [the appellant] guilty on this evidence.
However, I emphasize that you should reject my opinion if you do not agree with it.
9Although there is some force in these submissions, we do not think that they support a conclusion that the jury’s verdict was unreasonable. At a minimum, the core of the complainant’s evidence was that the appellant engaged in vaginal intercourse with her at a friend’s home on a number of occasions. This was a consistent thread of her evidence in the interview, at the preliminary inquiry and at trial. Moreover, the jury was in the favoured position of seeing both the video interview of the complainant and her testimony at trial. Accordingly, it was well‑placed to assess her credibility. In the end, the trial judge was right to tell the jury that it was its opinion that ultimately mattered: see Francois, supra, at pp. 214‑15. In this case, the jury believed the core of the young complainant’s evidence, namely that her step‑father had engaged in sexual activity with her.
Jury Question
10The appellant contends that the trial judge erred in his response to the jury’s question: “We would like to see the video from the beginning of [the children’s aid worker’s] questioning.” The trial judge ordered that precisely this portion of the video be played for the jury in the courtroom. The appellant submits that this response was insufficient, that there was also an obligation to have read back to the jury the testimony of the complainant that might be regarded as contradictory of what she said in the video interview.
11We disagree. The trial judge exercised his discretion by not sending the videotape (which was an exhibit) into the jury room during the jury’s deliberations. Throughout the trial – when he admitted the video into evidence, when he gave a mid‑trial instruction to the jury, and with respect to his proposed jury charge – the trial judge took care to invite submissions from counsel about the proper use of the video in the jury’s deliberations. Both counsel agreed with the steps he took. Moreover, after the jury asked to see part of the video, defence counsel at trial made no objection until after the video had been played, and the objection was general and unfocussed. Specifically, defence counsel at trial did not request a readback of the complainant’s testimony, including the cross‑examination. For these reasons, we conclude that the trial judge handled the jury’s request to see part of the video in an appropriate fashion. It is true that he could have gone further, and that an ideal response might have included a reminder that the jury should be alive to the other evidence from the complainant, including the cross‑examination. However, defence counsel did not request this, and we cannot say that its omission undermines the trial judge’s response.
Sentence
12There is no basis to interfere with the sentence imposed by the trial judge. A sexual assault by a parent on a nine year old demands a penitentiary sentence. The sentence of three years in this case is an entirely fit sentence.
Disposition
13The appeal against conviction is dismissed. Leave to appeal sentence is granted and the appeal from sentence is dismissed.
RELEASED: November 8, 2006 (“RM”)
“R. Roy McMurtry C.J.O.”
“Doherty J.A.”
“J. C. MacPherson J.A.”