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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.
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
Strathy C.J.O., Rouleau and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kevin Boyle
Appellant
Sophia Newbould, for the appellant
Lucy Anne Cecchetto, for the respondent
Heard: October 7, 2014
On appeal from the conviction entered on June 12, 2013 and the sentence imposed on July 25, 2013 by Justice R. Dan Cornell of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant appeals his convictions for sexual assault, uttering a death threat, and choking during the course of a sexual assault. He also seeks leave to appeal his sentence.
2The appellant advances three principle grounds of appeal:
(i) The trial judge erred in not recusing himself based on a reasonable apprehension of bias, despite having presided over the appellant’s prior bail review hearing;
(ii) The trial judge repeatedly erred in his apprehension and treatment of the evidence and the verdict was unreasonable; and
(iii) The trial judge erred in imposing a sentence of 4.5 years imprisonment.
REASONABLE APPREHENSION OF BIAS
3The fact that the trial judge presided at the appellant’s unsuccessful bail review application and then at the trial, did not create a reasonable apprehension of bias.
4The trial judge had no recollection of the bail review, was not provided with the transcripts, and no formal recusal application was made.
5Moreover, the trial judge’s comments during the bail review do not reveal any predisposition to decide the issues at trial and there is no basis in the judge’s reasons to believe that he considered matters arising in the bail review in making his determinations of credibility at trial.
6The allegation of an apprehension of bias is entirely speculative and does not suffice to displace the strong presumption of judicial integrity and impartiality.
EVIDENCE ERRORS AND UNREASONABLE VERDICT
7The appellant submits that the trial judge made numerous errors in assessing the evidence and reached an unreasonable verdict.
8First, the appellant submits that the trial judge erred in his credibility and reliability analysis of the complainant. We reject this argument. In our view, the trial judge adequately addressed the issue of credibility and there was ample basis for his credibility findings. The trial judge was not obliged to address every alleged inconsistency that arose in the evidence.
9We also see no error in the trial judge’s R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 analysis. The trial judge properly instructed himself and did not err in his application of the relevant principles.
10Contrary to the appellant’s submissions, the trial judge’s inferences drawn from the complainant’s injuries were reasonable and did not require expert evidence. We also see no misapprehension of the evidence.
11Finally, we are not satisfied that the appellant has established that the verdict was unreasonable. The verdict was based upon the evidence of the complainant, supported by the evidence regarding her injuries and the text messages to a friend she sent while in the appellant’s vehicle.
12Accordingly, the appeal from conviction is dismissed.
THE SENTENCE APPEAL
13The appellant also seeks leave to appeal his sentence.
14He submits that the trial judge over emphasized the principles of denunciation and deterrence. We disagree. The sexual assault was accompanied by additional violence and threats to kill, heightening the importance of denunciation and deterrence.
15The appellant further submits that the trial judge over emphasized his criminal record. We see no merit in this submission. The trial judge correctly had regard to the appellant’s lengthy criminal record, which includes convictions for violence.
16The appellant submits that the trial judge erred in finding as an aggravating factor that the complainant was taken to a remote area. We do not agree that the trial judge erred. While the complainant directed the appellant to the park, the evidence was that he drove her to the middle of the park, far from the street.
17The appellant committed a serious sexual assault on an 18-year-old vulnerable complainant. We are of the view that the 4.5 years sentence imposed is a fit sentence in the circumstances.
18Accordingly, leave to appeal sentence is granted, but the sentence appeal is dismissed.
“G. R. Strathy C.J.O.”
“Paul Rouleau J.A.”
“C. William Hourigan J.A.”
