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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: September 27, 2019

Docket: C65862

Panel: Juriansz, Pepall and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Ronald Philip Beer Appellant

Counsel

Jennifer Dagsvik, for the appellant

Leslie Paine, for the respondent

Heard and Released

Heard and released orally: September 17, 2019

On appeal from the conviction entered by Justice Helen M. Pierce of the Superior Court of Justice on June 11, 2018 and the sentence imposed on August 22, 2018.

Reasons for Decision

[1] The appellant appeals his conviction for sexual assault by a judge sitting alone. The complainant alleged that on October 16, 1992 after a night of drinking she awoke to find the appellant having intercourse with her. The fact that intercourse had taken place was established by DNA evidence proving the appellant was the father of the complainant's child. The issue at trial was whether the complainant had consented to the sexual assault.

[2] The appellant submits that the trial judge relied on the trial Crown's misstatement of the evidence to support her finding that the complainant was credible. The trial judge found that there was a "strange coincidence in a similarity of language used by the accused and the complainant about the sex act." The coincidence was that the complainant testified in-chief that when she awoke and confronted the accused who was having sex with her, he had said, "calm down I didn't put it in you." And when the police contacted the appellant he denied having sex with the complainant saying, "I never stuck it in her."

[3] In cross-examination and in her closing submissions, the Crown mistakenly stated that the complainant had attributed this comment to him in her statement to the police. In her reasons, the trial judge correctly recited what the complainant had said at trial, but also repeated the Crown's misstatement that she had also said it when interviewed by the police.

[4] We are not persuaded that the misapprehension was material and rendered the appellant's trial unfair. The complainant had indeed attributed the statement to the appellant in her testimony at trial, just not in her police statement. The significance of the coincidental use of the similar phrase is not undermined by the misapprehension that the complainant said it in her police statement as well.

[5] In any event, there were many other reasons given by the trial judge for finding the appellant was not credible. Significantly, he had denied sexual intercourse had taken place until the DNA results became available.

[6] We are not persuaded that the trial judge used the complainant's prior consistent statements to support her credibility. The prior statements were admissible and properly used to rebut the defence's allegation of recent fabrication and the submission that the complainant's behaviour had not changed.

[7] We also see no merit in the contention that the trial judge failed to consider the reliability of the complainant's testimony. Trial judges need not expressly refer to "reliability" where their reasons show that they have considered it.

[8] Turning to the sentence appeal, the then 71-year-old appellant's absence of remorse permeated the trial judge's reasons for sentence. In our view, she treated his absence of remorse as an aggravating factor. Therefore, it falls to us to determine a fit sentence.

[9] The Crown observed that one would be hard-pressed to find a truly comparable case in the jurisprudence that resulted in a four-year sentence and, that if the court saw fit, a sentence of three years would be substantial but not crushing and would give effect to the serious impact on the complainant.

[10] In these circumstances, we would grant leave to appeal sentence, allow the sentence appeal and reduce the sentence to three years.

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.