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of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with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: 20060131

DOCKET: C41612

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CATHERINE DOYLE (Applicant/Appellant)

BEFORE:

McMURTRY C.J.O., GOUDGE AND BORINS JJ.A.

COUNSEL:

Jonathan Dawe

for the appellant

Jamie Klukach

for the respondent

HEARD & RELEASED ORALLY:

January 24, 2006

On appeal from the conviction by Justice James A. Fontana of the Ontario Court of Justice dated December 2, 2003 and from the sentence imposed by Justice James A. Fontana dated April 5, 2004.

E N D O R S E M E N T

[1] The appellant raises a number of arguments about the trial judge’s findings of fact. First, she says that the trial judge erred in either failing to explain the inconsistencies between the evidence of the Crown’s key witness K.D., and much of the defence evidence or in misapprehending that evidence. This argument focuses on the length of confinement of the victim L.B. and when it happened.

[2] The trial judge found that the victim was confined at least intermittently, and for varying periods of time, apparently in the fall of 1997. He made clear that he accepted K.D.’s evidence that there was at least some confinement then, and found ample support for this in the victim’s evidence and that of the teachers, principal, and teaching assistant. He did not find the defence evidence to raise a reasonable doubt in this regard. These reasons explain his thought process adequately and in a way that permits our review. He was not required to address every possible piece of conflicting evidence in reaching his conclusion. Nor did he misapprehend K.D.’s evidence. Her view of the length of confinement was not a focus of the defence at trial and her evidence on this issue was not categorical and is not erroneously recited by the trial judge in our view. This ground of appeal fails.

[3] Second, the appellant argues that the trial judge applied a higher level of scrutiny to the defence witness J.D. than to the Crown witnesses. We disagree. It was entirely open to the trial judge to reject the former and accept the latter on the basis he did. What the appellant characterizes as minor parts of the testimony of these witnesses that influenced the trial judge’s conclusion are, in our view, precisely the kinds of indicators that it is the business of trial judges to assess when credibility is the central issue.

[4] The appellant then challenges the findings on the counts concerning J.D. In our opinion, it was entirely open to the trial judge to make the findings that he did. As the appellant acknowledges, credibility was the central issue the trial judge faced, and his reasons reflect that he dealt with it properly, particularly in light of his findings on the confinement count.

[5] Finally, the appellant challenges the findings concerning the failure to provide the necessities of life. However, here as well, there was sufficient evidence to support the conclusion that the charge had been made out.

[6] In the end, the appellant’s underlying concern seems to center on the basic view that the Crown’s evidence had to be disbelieved because of its inherent unlikelihood and the contrary evidence. However that debate was exactly what had to be resolved at the trial. It is not our role to retry the case.

[7] The appeal must therefore be dismissed.

“R. R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“S. Borins J.A.”