COURT OF APPEAL FOR ONTARIO

DATE: 20000818

DOCKET: C32944

RE: HER MAJESTY THE QUEEN (Respondent) –and– CHAD ROBERT NELLES (Appellant)

BEFORE: FINLAYSON, GOUDGE and FELDMAN JJ.A.

COUNSEL: Alexander Toffoli and Michael W. Lacy, for the appellant

J. Sandy Tse, for the respondent

HEARD: August 11, 2000

On appeal from the conviction imposed by The Honourable Mr. Justice Ian M. Gordon, sitting without a jury, dated June 23, 1999 and from the sentence imposed by Justice Gordon dated August 12, 1999.

E N D O R S E M E N T

[1] The appellant appeals his conviction for sexual assault and his sentence of nine months. The only live issue at the trial and on this appeal was whether the complainant had consented to the brief acts of sexual intercourse.

[2] It is unfortunate the trial judge felt that he had to apply R. v. Ewanchuk (1999), 131 C.C.C. (3d) (S.C.C.) to this case because, on the facts, it was unnecessary to do so. However, the trial judge is clear in his findings that he had a reasonable doubt as to whether the complainant consented to the first sexual act but that, with respect to the second sexual act (which he refers to as phase two), he found confirmation in the admissions of the appellant that the complainant did not consent. The trial judge said:

The situation with regard to confirmation on phase two is different. The accused’s own evidence, as best I can recall from my notes, of what happened after she expressed that he was hurting her comprised in the following. And these are from my notes as close as I can give to quotes. “She wasn’t the same.” “I kind of figured she didn’t want to the second time.” “I agree I ignored my own observations and I wanted to have sex.” “From my observations she lost all interest.” “I thought she was no longer interested.” “I asked if she wanted to try again. She gave no answer.”

These answers I find confirm the complainant’s evidence of a lack of consent on phase two.

[3] These answers also make it clear that the appellant did not believe that the complainant was consenting.

[4] As to sentence, we are of the opinion that nine months is excessive in the circumstances. The Crown described the sexual act of the appellant as a “rape” but conceded that as a rape it was minimal and merited a sentence at the lower end of the scale. The appellant was a young man; he has no record and has strong family support. The sexual acts were of a short duration and, with respect to the second one that he was convicted of, he desisted when the complainant protested. The trial judge was of the opinion that no probation order was necessary. In our view, the interests of justice would be served if the sentence were reduced to six months.

[5] Accordingly, the appeal against conviction is dismissed, leave to appeal sentence is granted and the appeal is allowed to reduce the sentence from nine to six months.

Signed: “G.D. Finlayson J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”