W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.

DATE: 20030506

DOCKET: C34974

C35682

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – R. C. V. (Appellant) (C34974)

COUNSEL: Sandra Kingston,

for the respondent

Michael W. Lacy,

for the appellant

-AND-

RE: HER MAJESTY THE QUEEN (Respondent) – and – R. V. (Appellant) (C35682)

COUNSEL: Sandra Kingston,

for the respondent

Maureen McGuire

for the appellant

BEFORE: ABELLA, MOLDAVER and ARMSTRONG JJ.A.

HEARD: April 24, 2003

On appeal from the conviction of Justice V.A. Lampkin of the Ontario Court of Justice dated July 2, 1999 and for leave to appeal the sentence imposed dated July 13, 2000.

E N D O R S E M E N T

Released Orally: April 24, 2003

[1] We only called on the Crown to respond to two issues: the trial’s judges approach to the need for corroborative and explanatory evidence, and sentence.

[2] The trial judge properly recognized that this was a case requiring him to proceed with caution. In his reasons, he dealt only with matters of genuine concern: opportunity, concoction, and C.’s ongoing willingness to return to the V. home. While he might have been clearer in addressing other inconsistencies in the evidence, such as those relating to time, place or frequency of the incidents, we are satisfied that, at the end of the day, it is implicit in his reasons that he did not consider those inconsistencies to be of sufficient moment to prevent him from relying on C.’s evidence to convict.

[3] With respect to the other issues, it was open to the trial judge to find that R. V. was in a position of trust in connection with the female complainant and we see no basis for interfering with his conclusion in this regard. Neither do we think he misdirected himself on reasonable doubt.

[4] Accordingly, the appeals against conviction are dismissed.

[5] With respect to sentence, we think that the trial judge was correct to characterize the offences as extremely serious and, taking into account the background of the offenders, he did not err in concluding that a penitentiary term in the upper single digit range was called for.

[6] However, we are not persuaded that in the exercise of his discretion, he gave sufficient credit for pre-trial custody. In the unique circumstances of this case, given the delays attaching to the ultimately abandoned dangerous offender application and the undue length of time it took to complete 30 days of evidence, particularly in light of the appellants’ express wish to have the trial and sentencing dealt with more expeditiously, we think they were entitled to two for one credit for pre-trial custody, that is, five years and four months. The appellants have now served two years and nine months of the sentence imposed by the trial judge. This means that they have effectively served just over eight years in prison, a fit sentence in these circumstances.

[7] Accordingly, we would grant leave to appeal sentence and vary the sentences of each appellant to time served.

“R. S. Abella J.A.”

“M. J. Moldaver J.A.”

“Robert P. Armstrong J.A.”