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. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) 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

(iii) 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; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20041014

DOCKET: C38296

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) -and-

W.S. (Appellant)

BEFORE: LABROSSE, MacPHERSON and CRONK JJ.A.

COUNSEL: Gregory Lafontaine for the appellant

Scott C. Hutchison for the respondent

HEARD: October 12, 2004

RELEASED ORALLY: October 12, 2004

On appeal from the conviction entered by Justice Nancy M. Mossip of the Superior Court of Justice, sitting without a jury, on January 23, 2002 and from the sentence imposed by Mossip J. on May 14, 2002.

E N D O R S E M E N T

[1] The appellant was convicted by Mossip J., sitting without a jury, of sexually assaulting and unlawfully for a sexual purpose touching the complainant, his niece. Conditional stays were entered on two other similar counts. He was sentenced to four years' imprisonment. He appeals both his conviction and sentence.

[2] It was alleged that the appellant had unwanted sexual intercourse with the complainant on eight occasions when she was 12-13 years old.

[3] The appellant raises the following issues:

a) the trial judge was in error in admitting similar fact evidence of the appellant's daughter and two earlier uncharged incidents alleged by the complainant and in allowing this evidence to be used for improper purposes;

b) the trial judge compromised the appearance of trial fairness in providing reasons for the ruling admitting the evidence of similar act only after the rest of the trial had been completed;

c) the trial judge shifted the onus of proof:

d) the trial judge misapprehended key features of the evidence; and

e) the sentence was excessive in the circumstances.

[4] With respect to the first ground of appeal, evidence of discreditable conduct is generally not admissible, subject to certain exceptions. In the present case, the trial judge properly concluded that the uncharged incidents with the complainant were relevant and material as part of the narrative of her description of her relationship with her uncle, the appellant. This evidence was important to explain why she went along with the appellant in these incidents and why she did not complain sooner. It was also important to establish the appellant's sexual attraction to his niece and assist in understanding his behavior. This evidence shed light on the appellant's relationship with the complainant and disclosed a course of conduct towards her that contradicted his defence of innocent association. The evidence did not look to similarities for its relevance, but to the common sense role these earlier events played in the complainant's narrative of abuse.

[5] There was no issue that the appellant had abused his daughter. This evidence supported the complainant's account of an incident in Newfoundland and also established a pattern in that it made it more likely that the appellant would engage in sexual misconduct with a young female member of his family who was under his care.

[6] In any event, it must be remembered that the trial judge was careful not to use this evidence for prohibited purposes. A trial judge's assessment of the probative value and prejudicial effect of evidence is entitled to considerable deference and we see no basis to interfere with her decision to admit this evidence.

[7] With respect to the other issues that have been raised, counsel for the appellant relies on his factum.

[8] As to the second issue raised by the appellant, it is generally preferable for a trial judge to hear the application to admit the disputed evidence and give reasons as opposed to giving reasons at the end of the case. It is clear that the trial judge wished to give detailed reasons for allowing the application and in light of the nature of that evidence, we see nothing unfair in the way the trial judge gave her reasons in this case.

[9] The third issue raised by the appellant relates to the shifting of the onus of proof and the misapprehension of evidence by the trial judge.

[10] The trial judge repeatedly and properly articulated the standard of proof and the need to determine whether the Crown had proven guilt beyond a reasonable doubt. She made it clear that this was not a mere credibility contest between the complainant and the appellant and further clearly applied the principles set out in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). We see no merit to this complaint.

[11] We requested the Crown to address the ground of appeal dealing with the misapprehension of evidence and invited counsel for the appellant to reply. With respect to that issue, the instances complained of by the appellant are matters that are best resolved by the trial judge on the basis of her observation of the witnesses and the evidence. They are not matters that should be retried by this court. We would not accede to this ground of appeal.

[12] In our view, the Crown had a strong case against the appellant. We see no reason to doubt the correctness of the verdict.

[13] Finally, we think that the sentence was appropriate in the circumstances. The gravity of the offences committed on his young niece, the number of instances of abuse and the breach of trust by the appellant demanded a severe sentence. The sentence is within the range for similar cases involving intercourse with young complainants and breach of trust.

[14] We would accordingly dismiss the appeal.

Signed: "J.-M. Labrosse J.A."

"J.C. MacPherson J.A."

"E.A. Cronk J.A."