DATE: 20031202

DOCKET: C38840

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – GERALD SNIPE (Appellant)

BEFORE: McMURTRY C.J.O., LASKIN and ROSENBERG JJ.A.

COUNSEL: Christopher Hicks For the appellant

Susan Magotiaux For the respondent

HEARD: November 27, 2003

RELEASED ORALLY: November 27, 2003

On appeal from conviction by Justice Bruce C. Hawkins of the Superior Court of Justice sitting with a jury on November 29, 2001 and sentence imposed on January 24, 2002.

E N D O R S E M E N T

[1] In our view, the trial judge was entitled to find that the appellant had not met the likely relevance test to meet the threshold for initial production of the records to the trial judge under s. 278.5 of the Criminal Code.

[2] While the complainant had pre-existing psychiatric problems, there was nothing in the evidence to show that those problems could have had any impact on her credibility or the reliability of her evidence.

[3] The appellant also relies on inconsistencies between the complainant’s initial complaints and her preliminary inquiry trial testimony. The appellant points out that the period of counselling intervened between the initial complaints and the preliminary inquiry.

[4] While there were some minor inconsistencies, they were not material in the sense referred to by this court in R. v. Batte (2000), 2000 5751 (ON CA), 145 C.C.C. (3d) 449 at para. 76. The only alleged major inconsistency concerned the hospital form that appeared to show a complaint of anal sex. However, there is no basis for attributing this part of the hospital form to the complainant. The other material is virtually conclusive that the complainant made no complaint of anal sex.

[5] The other inconsistencies relate to minor matters such as the order in which certain events occurred. The requirement that the inconsistencies be material is to ensure that records are not produced solely on the basis of stereotypical beliefs about the conduct of complainants in sexual assault cases or about persons with mental disabilities.

[6] We would not give effect to this ground of appeal.

[7] The appellant’s other ground of appeal was the trial judge failed to set out the theory of defence and relate the evidence to that theory. We think this is one of those rare cases where this was not necessary. The theory of defence is set out in defence counsel’s jury address immediately before the charge to the jury, was almost wholly speculative and any fair presentation of it would have required that this be pointed out to the jury. This would account, in our view, for the lack of objection by experienced counsel.

[8] We would therefore not give effect to this ground of appeal. Accordingly the appeal from conviction is dismissed.

[9] As to sentence, while the appellant was virtually a first offender, this was a most serious offence and required a penitentiary sentence. The appellant raped a 15-year-old girl causing her injuries. The appellant has suffered some health reversals but, in our view, they cannot justify interfering with the trial judge’s sentence. While we are conscious on the immigration consequences, this is not a case where those consequences weigh so heavily that we would be justified in reducing the sentence to a reformatory term.

[10] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

Signed: “R. Roy McMurtry CJO”

“John Laskin J.A.”

“M. Rosenberg J.A.”