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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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
Doherty, Simmons and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.G.R.
Appellant (Applicant)
Delmar Doucette, for the appellant (applicant)
Craig Harper, for the respondent
Heard and orally released: February 2, 2009
On appeal from the conviction entered by Justice B. Wein of the Superior Court of Justice dated September 6, 2006 and the sentence imposed dated January 29, 2007.
ENDORSEMENT
1The appellant was charged with eleven offences. Four of the counts involved sexual assaults and seven involved other assaults. The victims of the assaults were the appellant’s daughter and three of his stepdaughters. The offences were historical in nature and were alleged to have occurred over a fifteen-year period. The appellant was tried by a judge alone and convicted on all counts. He received a total sentence of 3 years imprisonment. The appellant appeals conviction and requests leave to appeal sentence.
2We propose to address the arguments urged on us by counsel for the appellant in oral argument. We will not address the submissions in the factum that were not advanced in oral argument.
Conviction Appeal
(i) The Conviction on Count 4
3Count 4 alleged gross indecency involving Rachel, one of the stepdaughters. Counsel submits that the trial judge misapprehended the evidence at para. 164 of her reasons and disbelieved the appellant because of that misapprehension.
4We do not accept this interpretation of the trial judge’s reasons. It was open to the trial judge to find, based on the appellant’s admissions as to when (1980-81) and where the events underlying this allegation of gross indecency occurred, that Rachel was between the ages of eleven and thirteen when the event occurred. The appellant’s evidence on cross-examination that his present recollection was that Rachel was younger than that when the event occurred does not detract from the appellant’s own evidence as to when the event occurred and Rachel’s actual age (eleven to thirteen) at that time.
(ii) The Convictions on Counts 7 and 8
5These counts alleged a sexual assault and an indecent assault involving the stepdaughter, Mary Lyn. The appellant submits that the trial judge erred at para. 51 of her reasons when she said:
… The reality is that her evidence (Mary Lyn) was largely confirmed by the evidence of the other witnesses.
6The appellant submits that the other witnesses, in fact, did not confirm Mary Lyn’s evidence on its central features and that one of the stepsisters (Elizabeth) contradicted significant parts of Mary Lyn’s evidence.
7The trial judge reviewed the evidence in relation to these counts in some detail between paras. 173 and 179. This review included the evidence of the stepsister, Rachel, which did confirm the evidence of Mary Lyn. The trial judge also reviewed the evidence of Elizabeth. We are not satisfied that any part of that review was inaccurate. While Elizabeth’s evidence certainly did not confirm Mary Lyn’s evidence to the same extent as did the evidence of Rachel, there were aspects of Elizabeth’s evidence that were potentially supportive of Mary Lyn’s evidence. We see no error in the trial judge’s review of the evidence or in her reference to the existence of confirmatory evidence from the other sisters.
(iii) The Conviction on Count 1
8Count 1 alleged an ongoing sexual assault against the appellant’s own daughter, Jessica. Although all of the charges were serious, this charge was probably the most serious. The trial judge reviewed the evidence in relation to this count in detail. She was aware of the specific difficulty inherent in assessing the reliability of Jessica’s evidence. Jessica testified that she recalled the events that were relevant to the sexual assault charges some time shortly after she left the appellant’s home when she was seventeen years of age. She recalled that these events occurred when she was between the ages of seven and thirteen. Jessica also testified that her memory became more detailed after she sought counselling for herself.
9At para. 216 of her reasons, the trial judge specifically indicates that an “additional layer of scrutiny” was needed in respect of Jessica’s evidence because of the manner in which she purported to recall the details of the relevant events. There is no reason to think that the trial judge did not do exactly what she said she had to do and examine that evidence with additional scrutiny.
10In the end, the trial judge believed the evidence of Jessica and accepted that her recollection was reliable. We see no misapprehension in the relevant evidence affecting that determination. The trial judge was entitled, as a matter of law, to accept the evidence of Jessica even though special scrutiny was required given the way in which she came to recall the relevant events.
(iv) The Trial Judge’s Overall Approach
11In addition to the attack on specific convictions, counsel for the appellant argues that the trial judge shifted the burden of proof and placed that burden on the appellant on all counts. Counsel also submits that the trial judge applied a different standard when testing the credibility and reliability of the appellant’s evidence than she did when testing the reliability and credibility of the evidence of the complainants.
12This submission is a very familiar one to this court and requires a review of the entirety of the reasons of the trial judge. We have examined those lengthy and detailed reasons. In our view, there is no support for the submission that the reasons placed a burden of proof on the appellant or subjected the appellant’s evidence to a higher level of scrutiny. The trial judge’s reasons for rejecting the appellant’s various explanations and denials were fully supported in the evidence and were, in our view, reasonable. The trial judge also expressly referred to W.D. and applied the formula set out in W.D. in assessing whether the Crown had met its burden of proof.
13The conviction appeal is dismissed.
The Sentence Appeal
14The trial judge imposed a total sentence of 3 years imprisonment. This sentence was in the low end of the appropriate range given the seriousness of these crimes, the blatant breach of trust and the number of victims involved in this matter. In imposing a sentence near the bottom end of the range, the trial judge took into account the appellant’s many and significant medical problems. She also expressed the belief that the prison authorities could adequately address those medical problems.
15The main thrust of the argument before us on the sentence appeal is that the evidence establishes that the prison authorities are not able to meet the appellant’s medical needs. Counsel submits that it would be appropriate to reduce the sentence to 2 years less a day so that a conditional sentence could be imposed. The appellant submits that a conditional sentence involving virtual house arrest except for medical reasons would meet the needs of deterrence and denunciation.
16We cannot agree. In our view, a sentence of 2 years less a day is simply too little to adequately reflect the seriousness of these offences. In addition, the evidence placed before us to the effect that the correctional authorities have not met the appellant’s medical needs is not persuasive. We are not satisfied that the evidence demonstrates that those needs have not been met and will not be met. No doubt, it would be better for the appellant’s medical treatment if he were not incarcerated. That is, however, no justification for interfering with an entirely appropriate sentence that takes into account the added difficulties the appellant will face in custody.
17Leave to appeal sentence is granted but the appeal is dismissed.
“Doherty J.A.”
“J. Simmons J.A.”
“E.E. Gillese J.A.”
