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complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.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: 20040408

DOCKET: C39546

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – D. A. D. (Appellant)

BEFORE:

WEILER, CRONK and GILLESE JJ.A.

COUNSEL:

Michael W. Lacy

for the appellant

Lorna Bolton

for the respondent

HEARD:

March 26, 2004

On appeal from the conviction entered on September 13, 2002 and the sentence imposed on October 24, 2002 by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] The appellant, D. D., was tried before Lack J. sitting with a jury. Following a four-day trial, he was found guilty of extortion and compounding or concealing an indictable offence. The finding with respect to the latter charge was conditionally stayed pursuant to R. v. Kienapple (1974), 1974 14 (SCC), 15 C.C.C. (2d) 524. The appellant was sentenced to eighteen months imprisonment and two years probation. In addition, a restitution order was made. The appellant appeals his conviction, seeks leave to appeal the custodial portion of his sentence, and appeals that portion of his sentence.

FACTS

[2] The appellant’s father, D. D. Sr., sexually abused the appellant’s two young daughters over a five-year period. It was alleged that upon finding out about the sexual assaults, the appellant confronted his father and threatened to report the matter to the police unless his father bought him a van, at a cost of $10,209, and gave him $3,000 in cash.

[3] On August 28, 2000, a cheque in the amount of $3000 was drawn from the appellant’s parents’ joint account and cashed by the appellant.

[4] On September 5, 2000, the appellant’s father purchased a van for $10,209. The van was immediately registered in the appellant’s name.

[5] The appellant testified that the purchase of the van was at his father’s instigation as an attempt to make amends and that the cheque in the amount of $3,000 was in payment of a debt that his father owed him.

[6] The Crown’s case depended upon phone messages left by the appellant on his father’s answering machine approximately one month after the purchase of the van. Seven phone messages from the appellant were recorded over a one-week period; the messages were recorded on four different microcassettes. The taped messages, which were played for the jury, disclosed the appellant making demands for money.

[7] The appellant acknowledged having left the messages for his father but testified that the demands were not for the purpose of extorting money from his father in exchange for remaining quiet about the sexual abuse. Rather, he said, the demands were made at his mother’s request. He testified that his mother had decided to leave his father when she learned about the abuse and needed money on which to live. The appellant’s mother denied having asked him to obtain money on her behalf.

[8] In testimony, the appellant said:

It was all getting to me. I mean, I had my wife, and my wife crying all the time and my daughters, so I started to have a few beers. I mean, this was too much, you know. It all got to me and I started to have a few beers, so I thought…Mom said you know, “Try your best”….

So, what I did is I phoned him on the phone and I said, well I’ve got to get more forceful. He’s not listening you know, so I started to say what I said on the tapes you know. After five or six beers, I started to say you know – get tougher and tougher, but it was over through the week and I tried to you know – tried to make him you know do it.

[9] The Crown conceded, at trial, that the appellant could only be found guilty if the jury was satisfied that the messages were left for the purpose of extorting money in exchange for not disclosing the abuse.

THE CONVICTION APPEAL

[10] The appellant submits that the trial judge erred in her charge to the jury by failing to direct the jury to consider the appellant’s state of mind in light of his consumption of alcohol.[^1]

[11] We agree with the Crown that there was no air of reality to the defence of intoxication. Although the appellant testified that he had consumed five or six beers prior to leaving at least some of the messages, he did not testify that he was intoxicated. The defence did not seek such an instruction and took no objection to the jury charge on this matter. The appellant gave no evidence concerning (1) the effect, if any, that the alcohol that he had consumed had on him; (2) the time period over which he had consumed the five or six beers; (3) how long after consuming the beer he had left the messages; or (4) which of the messages he had left after consuming the beer. There was no evidence of his size, weight or tolerance for alcohol. No expert evidence was called.

[12] In R v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 at 156 (S.C.C.), McLachlin C.J.C. and Bastarache J. explained the basic features of the air of reality test:

The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury. Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence that lacks an air of reality should be kept from the jury.

As there was insufficient evidence to support a reasonable inference that the appellant was intoxicated, it follows that the trial judge was not obliged to relate the evidence of the appellant’s alcohol consumption to the issue of his state of mind.

THE SENTENCE APPEAL

[13] The appeal from sentence is based on the sentencing judge’s alleged error in failing to impose a conditional sentence.

[14] The appellant alleges that the error arose from the sentencing judge’s failure to give adequate consideration to the appellant’s declaration of remorse. In our view, as the sentencing judge expressly considered the appellant’s expression of remorse, there is no basis upon which to conclude that she failed to give it adequate consideration.

[15] However, the sentencing judge did err in her findings in relation to the appellant’s circumstances. She stated, in her reasons for sentence, that: “He [the appellant] does not, however, appear to be employed.” In fact, the evidence is that the family’s income was based on the money that the appellant earned on various projects, including Web development and songwriting. The only other source of income for the family was babysitting money earned by the appellant’s wife. The evidence also discloses that the family applied for family benefits in order to be able to survive economically in the event that the appellant was incarcerated.

[16] As the sentencing judge erred, this court is entitled to intervene and determine the appropriate sentence. In our view, on a full consideration of the circumstances, the appellant’s sentence should be reduced to time served. The appellant was forty-four years of age at the time of sentencing. He had a minor criminal record consisting of two convictions (theft under $1000 and failure to attend court) from 1989. His twenty-one year relationship with his wife was stable and committed. He and his wife lived with their four children in a rural setting. The evidence disclosed that his children are very attached to him and that it was the appellant who walked them to school, helped with their homework and took them places. Not only was the appellant effectively the sole source of financial support for his family, the appellant was the only member of the family who could drive. His wife, four children and mother-in-law relied on him for all of their transportation needs. The appellant’s mother-in-law had lived with the family for ten years at the time of sentencing. She was 74 years of age. The appellant and his wife both helped look after her. The family home was heated by a wood stove. The appellant was responsible for chopping the wood and maintaining the stove; his wife was unable to perform those functions due to a back injury. In addition, and importantly, the appellant has already served a significant portion of his sentence in jail.

DISPOSITION

[17] Accordingly, the appeal from conviction is dismissed, leave to appeal sentence is granted, the sentence appeal is allowed and the custodial portion of the sentence is reduced to time served, all other aspects of the sentence to remain the same.

“Karen M. Weiler J.A.”

“E. A. Cronk J.A.”

“E. E. Gillese J.A.”

[^1]: In his factum, the appellant alleged that the error related to self-induced intoxication. At the hearing of the appeal, however, counsel for the appellant conceded that the evidence did not establish intoxication but only that the appellant had consumed some alcohol.