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complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.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: 20030730
DOCKET: C37267
COURT OF APPEAL FOR ONTARIO
LASKIN, MOLDAVER and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
E.Y.
Appellant
Paul Calarco, for the appellant
Amy Alyea, for the respondent
Heard: July 14, 2003 Released Orally: July 14, 2003
On appeal from the conviction imposed by Justice Joseph F. Kenkel of the Ontario Court of Justice dated August 28, 2001, and the sentence imposed by Justice Kenkel dated January 30, 2002.
BY THE COURT:
[1] We called on the Crown to respond to the appellant’s submission that the trial judge misapprehended the evidence of the complainant, her sister and her mother and, that therefore, he did not fairly assess the credibility and reliability of their testimony.
[2] In our view, the trial judge was alive to the frailties in the complainant’s evidence. In convicting the appellant, the trial judge did not rely on the complainant’s evidence alone, but also took into account three pieces of confirmatory evidence:
• The evidence of the complainant’s sister;
• The actions of the appellant after being confronted with the allegation of sexual abuse; and
• His admissions to the police.
[3] Moreover, we do not think the trial judge erred in his assessment of the evidence of either the complainant’s sister or her mother. The trial judge was aware of the sister’s animus towards the appellant. He was nonetheless entitled to discount it, as he did, in his assessment of her credibility and reliability. Moreover, the trial judge did not ignore the sister’s outburst in the courtroom but was entitled, as he did, to give it no weight. The trial judge’s failure to accurately specify when the mother came to disbelieve her daughter did not undermine his conclusion that the mother’s evidence gave little support to the defence. We, therefore, do not give effect to this ground of appeal.
[4] We found no merit in the other grounds of appeal advanced by the appellant. The trial judge did not err in finding that the remainder of the therapist’s notes were not likely relevant. The appellant had a copy of the note of the therapist’s first meeting with the complainant, a copy of the complainant’s first statement to the police and the records of the Children’s Aid Society. The affidavit in support of the motion for production of the rest of the therapist’s notes did not lay an evidentiary foundation to show that the other notes of the therapist contained information not already available to the defence or had potential impeachment value.
[5] The trial judge did not err in his treatment of the appellant’s after the fact conduct. That conduct was capable of supporting the conclusion drawn by the trial judge that the appellant was attempting “to control the process of disclosure and portray himself as a concerned parent with a troubled daughter who was making false accusations while he was trying to get her help.”
[6] We are not persuaded that the verdict was unreasonable. The complainant’s evidence alone is reasonably capable of supporting the verdict.
[7] For these reasons the conviction appeal is dismissed.
[8] We decline to interfere with the sentence of eighteen months in custody. Even if the trial judge erred in principle, a custodial sentence for a step‑father’s repeated acts of sexual abuse of a step‑daughter is fit. Accordingly, although leave to appeal sentence is granted, the sentence appeal is also dismissed.
RELEASED: July 30, 2003
“JIL” Signed: “John Laskin J.A.”
“M.J. Moldaver J.A.”
“E.A. Cronk J.A.”