Publication Ban Warning
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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.
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 File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20220114 DOCKET: C68528
van Rensburg, Paciocco and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
P.C. Appellant
Counsel: Jolene Hansell, for the appellant Hannah Freeman, for the respondent
Heard: January 10, 2022 by video conference
On appeal from the convictions entered by Justice Paul R. Sweeny of the Superior Court of Justice, sitting with a jury, on January 15, 2019, and from the sentence imposed on August 6, 2019.
Reasons for Decision
1P.C. appeals his convictions for sexual assault and sexual interference. He also seeks leave to appeal his sentence of four years.
2The appellant was accused of sexually abusing his niece on several occasions when she was between seven and ten years of age. It was alleged that the appellant removed her clothes and touched her body in various areas, including her vagina.
3The appellant advances two grounds of appeal. He abandoned a third ground of appeal regarding the trial judge’s rejection of his application for a challenge for cause based on religion.
4First, he asserts that the trial judge used language in his charge to the jury that might have caused the jury to confuse the evidence that he gave at trial with the submissions that he made. In this regard, it is important to know that the appellant was not represented at trial. He conducted his defence on his own, albeit with the assistance of amicus.
5In particular, the appellant complains that, while the trial judge referred to the “evidence” of the complainant, when he referred to the evidence that the appellant gave, he generally referred to it as what the appellant “asserted”, rather than what the appellant testified to.
6We do not accept this complaint regarding the trial judge’s charge to the jury. The jury heard the evidence directly. They knew what both the complainant and the appellant had said happened. In addition, at various points in the charge, the trial judge referred expressly to the evidence that the appellant had given. Further, the trial judge instructed the jury that it was their memory of the evidence, not his, that mattered. We do not believe that the jury would have been misled by the difference in the words used, nor would they have been confused between the evidence that the appellant gave and the submissions he subsequently made about the evidence.
7The second ground of appeal is that the trial judge failed to give sufficient assistance to the appellant, given that he was unrepresented. This complaint is most specifically addressed to the jury charge and the pre-charge conference. Again, we do not accept this complaint. We do not accept that the trial judge failed to give the appellant sufficient time to consider the draft jury charge. The trial judge had an obligation to balance the amount of time he afforded the parties to review the charge with his obligation to ensure that the trial moved forward in a timely manner. The trial judge gave the appellant, and counsel for the Crown, the charge in draft on Friday morning. He then conducted an extensive pre-charge conference that afternoon. The trial judge produced a revised draft charge on the following Monday. This was sufficient time for the appellant to provide his views on the contents of the charge. We are supported in that conclusion by the reality that amicus was, at this same time, present and providing assistance.
8With respect to the sentence appeal, the appellant contends that the trial judge improperly relied on the fact that there had been penetration of the complainant by the appellant when the evidence did not support that conclusion. We disagree. It was open to the trial judge to reach the conclusion that penetration had occurred. When a trial judge is sentencing based on convictions made by a jury, they are required to make their own findings of fact when those facts are not clear from the jury’s verdict: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18. We also note on this point that, by the time of sentencing, the appellant was represented by counsel. His counsel did not take issue with the trial judge’s view that penetration had occurred, nor did he request that a Gardiner hearing be conducted on the issue. [1]
9The appellant also complains that the trial judge did not give sufficient weight to various mitigating factors. Again, we do not agree. The trial judge considered all of the relevant factors and arrived at a sentence that was appropriate in the circumstances of this case. His conclusion regarding the appropriate sentence is entitled to deference from this court: R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 25.
10The appeal on conviction is dismissed. While leave to appeal sentence is granted, the appeal is dismissed.
“K. van Rensburg J.A.”
“David M. Paciocco J.A.”
“I.V.B. Nordheimer J.A.”
