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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. M.G., 2007 ONCA 837
DATE: 20071203
DOCKET: C46630
COURT OF APPEAL FOR ONTARIO
ROSENBERG, LANG and ROULEAU JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
MICHAEL G.
Applicant (Appellant)
Thomas F. Balka for the appellant
Kimberley Crosbie for the respondent
Heard: November 29, 2007
On appeal from conviction by Justice Myrna L. Lack of the Superior Court of Justice dated November 7, 2006 and sentence imposed dated January 11, 2007.
ENDORSEMENT
1The appellant appeals his conviction and sentence on charges of sexual and physical abuse relating to his daughter and physical abuse of his son. He also appeals from the total sentence of six years imprisonment. At the conclusion of the oral argument we only called upon Crown counsel in relation to the sentence appeal and indicated our reasons for dismissing the conviction appeal and the sentence appeal would be released shortly. These are those reasons.
CONVICTION APPEAL
Misapprehension of Evidence
2The appellant submits that the trial judge misapprehended the evidence concerning the allegations of sexual intercourse and the complainant’s previous knowledge of sexual activity. The complainant on this count is the appellant’s daughter and was ten years of age when the complainant complained to her teacher of physical abuse by the appellant. The complainant was interviewed by the Children’s Aid Society and the police and made further allegations of sexual abuse including, eventually, sexual intercourse.
3There is no question that the complainant’s allegations evolved somewhat over time. However, the complainant offered explanations, which the trial judge accepted. In particular, the trial judge accepted the complainant’s evidence that when first interviewed, the complainant did not understand the meaning of sexual intercourse. She gave a particularly detailed and compelling explanation for this lack of understanding and it was open to the trial judge to accept this explanation.
4The trial judge in her reasons relied upon the fact that in her videotaped statements to the police that were admitted under s. 715.1 of the Criminal Code the young complainant had “extensive knowledge of sexual matters”. The appellant submits that this fails to take into account the evidence of one incident of sexual experimentation between the complainant and her brother when they were very young and that the complainant had frequently observed the appellant and his wife have sexual relations, particularly oral sex and “having sex with his penis against her body”. However, the complainant described much more extensive sexual knowledge than she would have gained from her observations. For example, in addition to the complainant’s unusual definition of sexual intercourse, she described an activity she called “sliding”, the properties of semen, specific sexual activities with the appellant in the bathroom, swallowing the appellant’s sperm and washing her face afterwards. Further, she used sexual terminology the content of which could not reflect her observations of the appellant and his wife. The trial judge was well aware of the complainant’s evidence about what she observed between the adults and referred to this evidence in her reasons.
5We are satisfied that the trial judge did not misapprehend the evidence concerning the allegations of sexual relations and that these findings are supported by the evidence.
Use of the s. 715.1 Statements
6The appellant submits that the trial judge did not properly deal with the s. 715.1 statements; that, in effect, she considered those statements separately from the complainant’s testimony. In our view, this is not an accurate assessment of the trial judge’s reasons. The trial judge carefully assessed the statements, but she also dealt with the complainant’s testimony. She observed that there were some “odd” features of the testimony due to the complainant’s immaturity but that she was satisfied that these features did not undermine the probative value of the statements that had been taken three and four years before the trial and therefore much closer to the time of the abuse. This was an appropriate approach.
The Assault Conviction
7The appellant submits that the verdict relating to the male complainant, the appellant’s son, was unreasonable. The trial judge convicted the appellant only of simple assault in relation to this complainant. She was not satisfied that the more serious allegations of sexual abuse had been proved beyond a reasonable doubt. We are satisfied that the conviction was reasonable. The allegation of physical abuse was made immediately to the police when the complainant was questioned. There was only a vague allegation of some sexual abuse at that time. The more serious allegations of sexual abuse came much later and in unusual circumstances, with the complainant stating that it just “popped” into his head that his father had forced him to have oral sex when he was three years of age. The complainant also displayed a serious animus towards the appellant that the trial judge found impacted on his testimony. There was some support for the view that the complainant had been influenced by others in the time between his initial complaint and the second more serious complaint. Finally, while there was substantial evidence supporting the allegations of physical abuse, there was no other evidence supporting the sexual abuse allegations.
8The trial judge gave extensive reasons for why she accepted the physical abuse allegation, including evidence from the complainant’s mother on this issue. In our view, she was entitled to accept the mother’s evidence on this point while rejecting her evidence that would have otherwise implicated her in covering up the abuse of her daughter. The trial judge was not satisfied that the other allegations of sexual abuse were made out. These reasons are supported by the record. The verdicts are not inconsistent and the conviction for assault is supported by the evidence.
9Accordingly, the appeal from conviction is dismissed.
THE SENTENCE APPEAL
10The appellant appeals the total sentence of six years imprisonment imposed by the trial judge. He submits that the trial judge erred in principle in giving him no credit for the time spent on strict bail conditions. The trial judge gave reasons for not doing so. She took into account that the strict conditions were imposed after the appellant breached a no contact term of his original bail and that he waited a considerable time before seeking a bail review when the house arrest condition was removed. More importantly, the record does not show that the house arrest condition had any significant impact on the appellant’s lifestyle. From the record, it appears that the appellant continued to work at home, he was living with his parents and other members of his family and was allowed to leave the house for certain reasons, such as treatment for his alcoholism. We are satisfied that the trial judge did not err in principle in refusing to give credit for the time spent on pre-trial bail conditions.
11The appellant also submits that the sentence was excessive. This submission was contingent on a finding that the trial judge erred in accepting the complainant’s evidence of sexual intercourse. Since we have held against the appellant on that issue, there is no merit to the submission that the sentence was excessive. This was a very serious case of sustained physical and sexual abuse by a person in authority. The abuse began when the complainants were very young and, in particular, the sexual abuse of the appellant’s daughter began when she was five years of age. The total sentence of six years imprisonment was fit.
12There is, however, a technical problem with the sentence. The trial judge purported to impose a sentence of five years imprisonment in relation to count #2 (sexual assault on his daughter). However, that count and count #4 were conditionally stayed. It is apparent that this was a slip and that the trial judge intended to impose the five-year sentence on count #3 (sexual interference). This is evident because the sex offender registration order was made in relation to count #3. Counsel for the appellant fairly concedes that this was a slip.
DISPOSITION
13Accordingly, leave to appeal sentence is granted and the appeal from sentence is allowed but only to the extent that the sentence of five years imprisonment imposed on count #2 is set aside and a sentence of five years imprisonment is imposed on count #3. The sentence of one year imprisonment consecutive imposed on count #6 will stand.
Signed: “M. Rosenberg J.A.”
“S.E. Lang J.A.”
“Paul Rouleau J.A.”