WARNING
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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Doherty, MacPherson and Sharpe JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
D.R.
Appellant
Frances Brennan, for the appellant
Roger A. Pinnock, for the respondent
Heard and released orally: April 13, 2012
On appeal from the conviction entered on June 8, 2010 and the sentence imposed on July 21, 2012 by Justice Roland J. Haines of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant was convicted on June 8, 2010 of incest and sexual assault in relation to his daughter between January 1, 2005 and April 18, 2009. He was sentenced on July 21, 2010 to four years’ imprisonment, concurrent for each offence. He appeals both the convictions and the sentence.
2The appellant contends that the trial judge’s reasons are insufficient to permit meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.
3We do not accept this submission. The trial judge delivered oral reasons for judgment covering 19 pages. The reasons demonstrate a firm grasp of the evidence and recognition that the central issue was credibility. The trial judge was alive to both the defence theory of motive to fabricate and the appellant’s firm denial of any sexual misconduct with his daughter. The trial judge also confronted the frailties in the complainant’s evidence.
4The appellant submits that the trial judge erred by shifting the burden of proof to the appellant. He did this when he rejected the appellant’s evidence by accepting the evidence of the complainant and the son of the appellant’s partner.
5There is nothing wrong with this approach to the evidence: see R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.), at para. 53.
6The appellant contends that the trial judge erred in his application of R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
7We disagree. The trial judge concluded his reasons with this summary, an entirely accurate reflection of W.D.:
Accordingly, I do not accept Mr. [R’s] testimony and do not find that it raises a reasonable doubt. I am, however, satisfied beyond a reasonable doubt on the testimony of [S.R.] and [D.C.] that [D.R.] is guilty as charged on counts one and two.
8The appellant did not pursue his unreasonable verdict issue in oral argument. For the sake of completeness, we record that we see no merit in this submission.
9The appellant’s sentence appeal is only a contingent one – namely, if we uphold the convictions only in relation to the April 17, 2009 incident, then the global sentence should be reduced. Since we do not think that the trial judge’s conclusion that there was a pattern of assaults was unreasonable, it follows that the four year sentence imposed by the trial judge should stand.
10The conviction and sentence appeals are dismissed.
“Doherty J.A.”
“J.C. MacPherson J.A.”
“Robert J. Sharpe J.A.”
