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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario
Date: 20211220 Docket: C67012 Gillese, Brown and Coroza JJ.A.
Between
Her Majesty the Queen Respondent
and
Trevor Letlow Appellant
Counsel: Jessica Zita and Gina Igbokwe, for the appellant Rebecca Schwartz, for the respondent
Heard: December 13, 2021
On appeal from the conviction entered on October 7, 2016, and the sentence imposed on April 4, 2018, by Justice Bonnie L. Croll of the Superior Court of Justice, with reasons for sentence at 2018 ONSC 1522.
Reasons for Decision
Overview
[1] The appellant was found guilty of aggravated sexual assault, assault with a weapon, assault causing bodily harm, sexual assault with a weapon, and unlawful confinement on October 7, 2016. He was designated a dangerous offender and sentenced to concurrent indeterminate terms on each offence on April 4, 2018. The appellant appeals against his sexual assault-related convictions and the trial judge’s decision to impose an indeterminate sentence.
[2] At the conclusion of the appellant’s submissions, we advised that it was not necessary to hear from the respondent and dismissed the appeals with reasons to follow. We now provide our reasons.
Facts
[3] The complainant testified that, on January 30, 2015, she and the appellant were smoking crack cocaine in the appellant’s apartment in Toronto. The appellant offered the complainant crack cocaine in exchange for oral sex, to which she agreed. However, the complainant testified that the appellant, after taking more drugs, began to assault her.
[4] The appellant hit the complainant’s ankles with an aluminum bar. He also cut the outside top of her left leg with a cooking knife. When she tried to run out of the door, the appellant grabbed her and pulled her back.
[5] The complainant testified that during the beating, the appellant cut her back, and later, the inside of her feet, shoulders, and arms. The appellant hit her on the head with a clothing iron. During the assault, the complainant continued to perform oral sex in an attempt to get the appellant to stop attacking her. The appellant also attempted to penetrate the complainant’s vagina with his penis, but was unable. The appellant tried to cut her vagina, but he instead cut her buttock.
[6] At one point, a visitor arrived – someone known to the complainant – and suggested that the appellant allow the complainant to go collect her ODSP cheque.
[7] In line at the office, the appellant and another woman argued. The appellant was then told to leave the building by a police officer. The complainant stayed in line. Once she was alone in the private ODSP office, the complainant told the person there that she had been stabbed, and then fainted. She was taken to the hospital by ambulance. The police officer who was on scene observed that the complainant had multiple stab and slash wounds from her feet to just below her neck.
Discussion
A. Conviction Appeal
[8] The appellant argues that there was a lack of corroborating evidence supporting the sexual assault conviction and that the trial judge failed to recognize the weaknesses with respect to this allegation. According to the appellant, the trial judge was required to address each offence individually to assess whether the elements of the offence had been proven.
[9] We do not accept this submission.
[10] In her reasons for convicting the appellant, the trial judge recognized that the complainant’s evidence must be approached with caution because of the complainant’s lengthy criminal record and significant drug use. However, the trial judge placed significant weight on corroborating evidence such as the complainant’s visible injuries, as well as the blood and knives found in the appellant’s apartment, when she assessed her evidence. In the end, the trial judge concluded that the complainant’s account of what occurred in the apartment was credible and reliable.
[11] The fact that each allegation of sexual assault made was not confirmed or corroborated by independent evidence was not an error. A trial judge is entitled to accept a complainant’s evidence whether it is independently confirmed or not. The sexual assault was intertwined with the other assaults. The complainant testified that during the beating and attacks with the knife, the appellant did not ejaculate during oral sex and attempted to penetrate her with his penis but was unsuccessful. Therefore, the absence of independent physical evidence of a sexual assault is hardly surprising. Indeed, in her reasons for judgment, the trial judge referred to the evidence of the Centre of Forensic Sciences witness who testified that if there was no ejaculation, there was a limited availability to develop a DNA sample for comparison.
[12] The trial judge could accept all, some, or none of the complainant’s evidence. The complainant testified that she was sexually assaulted during the incident and the trial judge accepted her testimony as credible and reliable. The trial judge’s reasons do not reflect any reversible error, and we see no merit in this ground of appeal.
B. Sentence Appeal
[13] The appellant argues that the trial judge committed an error in imposing an indeterminate sentence because there was evidence before her that the appellant’s behaviour could be adequately managed outside of an indeterminate sentence. The appellant relies on the evidence of Dr. Klassen, who testified at the dangerous offender proceeding that the appellant’s risk would eventually be manageable because he would expect that the appellant’s risk for serious violence would be attenuated with age. The appellant submits that the trial judge erred by rejecting that opinion.
[14] In our view, there is no basis to interfere with the sentence imposed by the trial judge.
[15] The trial judge, in very careful and thorough reasons, tracked the language of s. 753(4) of the Criminal Code, R.S.C., 1985, c. C-46 and the Supreme Court of Canada decision in R. v. Boutilier, 2017 SCC 64, at para. 60.
[16] The trial judge grappled with Dr. Klassen’s evidence about age attenuation. However, the trial judge conducted a thorough inquiry as to whether the appellant could be controlled in the community, by considering all the evidence. We adopt the following conclusion, provided by the trial judge, which was firmly rooted in the evidence:
[89] … As discussed, Mr. Letlow’s crimes of violence have become more serious over time. He has had extensive treatment while in custody and has proven incapable of implementing that treatment. He has consistently failed to comply with orders of supervision, and then attempts to minimize his non-compliance and his criminal conduct overall. It would be speculative and unduly hopeful to conclude that Mr. Letlow will meaningfully engage in the anti-relapse element of treatment, or submit to supervision, given his lengthy and consistent pattern of failing to implement his treatment and breaching supervisory conditions.
[17] The trial judge was not required to accept Dr. Klassen’s evidence and, in our view, provided cogent reasons for placing limited weight on the evidence. Accordingly, we see no basis to interfere with trial judge’s conclusion that there was no reasonable expectation that a lesser measure than an indeterminate sentence could adequately protect the public. This ground of appeal fails.
Disposition
[18] For these reasons, the appeals are dismissed.
“E.E. Gillese J.A.”
“David Brown J.A.”
“S. Coroza J.A.”
