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:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
CITATION: R. v. R.M., 2007 ONCA 33
DATE: 20070122
DOCKET: C43222
COURT OF APPEAL FOR ONTARIO
LABROSSE, CRONK and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Russell Silverstein, for the appellant
Respondent
- and -
R.M.
Jeanette Gevikoglu, for the respondent
Appellant
Heard: January 17, 2007
On appeal from the convictions entered on January 28, 2005, and the sentences imposed on June 15, 2005, by Justice Thomas N. Dunn of the Superior Court of Justice, sitting with a jury.
BY THE COURT:
[1] The appellant was convicted of sexual assault (x2), assault (x4), sexual touching and indecent assault against members of his extended family. One of the sexual assault convictions was stayed pursuant to R. v. Kienapple. The offences are historical in nature and were alleged to have occurred over a thirty-year span. He was sentenced to a global sentence of twelve months incarceration plus probation for two years and a D.N.A. order.
[2] The appellant denied all of the allegations.
[3] The appellant appeals the convictions on the basis of the dismissal of his application under s. 11(b) of the Charter of Rights and Freedoms, that the verdicts are unreasonable and that the trial judge failed to properly instruct the jury with respect to a beating incident recounted by one complainant (J.M.) and with respect to possible collusion. He also appeals the sentence.
The s. 11(b) application
[4] The motion judge found that the length of the delay in this case, 30 months (from the date of arrest and including the preliminary hearing and the s. 11(b) application to the date that the trial began), was sufficiently lengthy to warrant closer inspection.
[5] In comprehensive reasons, the motion judge took into consideration all of the Morin guidelines (see R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.)) in arriving at his conclusion. In particular, he addressed the time requirements for intake, obtaining and instructing counsel, preparation and disclosure. He also considered the failure to have witnesses available, the underestimation of the time required to examine witnesses, and the failure to obtain transcripts for the s. 11 (b) application resulting in an adjournment and the change in the trial date.
[6] The motion judge refused to treat the guidelines of the Ontario Court of Justice as fixed guidelines. He emphasized that it is the reasonableness of the entire period in issue that is to be considered. In Morin the court made it clear that the purpose of the suggested period was not that it was to be treated as a limitation period and inflexible.
[7] In the end, the motion judge concluded that this was a close case. He arrived at a total of 19 months of delay, with part of that delay caused by the Crown and by the lack of institutional resources in the system. In these circumstances, he recognized that, as the case was close, the assessment of prejudice was critical. He balanced the nature and extent of the prejudice of the delay to the appellant against the other interests at issue. He found that the extent of the overall prejudice did not weigh in favour of granting a stay and that the delay was not unreasonable.
[8] We note that this was not a simple case. There were two sets of charges (requiring two sets of disclosure), involving 6 complainants. The charges dealt with incidents alleged to have occurred over a span of 30 years.
[9] The motion judge was in the best position to decide this issue and we are not persuaded that his calculation of the relevant periods of time was unreasonable.
[10] We would not give effect to this ground of appeal.
The unreasonableness of the verdicts
[11] The appellant submits that there was no rational basis upon which the jury could find him guilty of the lesser-included offences of assault on J.M. and that the nature of the evidence did not support either the trial judge’s instructions or the result. It is the Crown’s position that it was open to the trial judge to leave to the jury the question of whether the abusive behaviour alleged by J.M. amounted to indecent or common assault.
[12] In our view, the verdict of assault on Count 4 – an act of gross indecency, specifically, fellatio – is unreasonable. There is no rational basis for an assault conviction on this Count, as the evidence simply does not support the verdict.
[13] However, with respect to the other assault convictions, the trial judge properly instructed the jury on how to treat the evidence of witnesses and told the jury that it could accept all, none or part of the evidence of a witness. In our view, there was a rational basis for the jury to reach the verdicts of assault in this case; the facts of the case support the jury’s findings of assault. The alleged abusive incidents described by J.M. are consistent with either indecent assault or common assault depending on the jury’s appreciation of the evidence. If the jury rejected the sexual nature of the assaults, the evidence amply supported the lesser-included offence of assault.
[14] Although this is not determinative of the issue, we note that counsel did not object to the trial judge’s instruction on assault as an available lesser-included offence. On the contrary, at the Pre-Charge Conference, counsel made it quite clear that he wanted the instructions to deal with the lesser-included offences and that this was a matter to be decided by the jury.
[15] While we find the verdict of assault on Count 4 unreasonable, the other assault verdicts are not unreasonable.
The alleged beating incident involving J.M.
[16] The appellant takes issue with the adequacy of the trial judge’s instructions with respect to J.M.’s allegation in her evidence that the appellant had beaten her when she was a teenager. She had reported the incident to the police at the time, but her parents persuaded her to drop the charges.
[17] We agree with the Crown that this was not a case where impermissible propensity reasoning was a real danger. The trial judge allowed the appellant to be cross-examined on this incident “to the point of credibility only, or perhaps the state of mind and the perception of each of them with respect to the relationship”. He made it clear to the jury that the appellant was not charged with this incident.
[18] Again, we note that defence counsel did not object to the charge and he made use of this evidence to attack J.M.’s credibility. More importantly, we have no doubt that, in the context of J.M.’s evidence, the appellant did not suffer any prejudice arising from the evidence of this one incident.
The trial judge failed to instruct the jury on collusion
[19] The trial judge properly instructed the jury on how it should consider the evidence in this case. This was not a case where the Crown relied on similar fact evidence. At the request of defence counsel, the trial judge instructed the jury to independently review the evidence of each assault and ensured through his instruction that the jury would not infer that a pattern of similar fact evidence existed.
[20] The trial judge did not think that there was any evidence of collusion and he refused to instruct the jury on the issue. We agree that there was no foundation in the cross-examinations of the complainants to give an air of reality to the defence allegation of collusion.
[21] We see no error on the part of the trial judge on this issue.
The sentence
[22] It is conceded that the trial judge did not err in his refusal to impose a conditional sentence and a conditional sentence is not appropriate at this time.
[23] The appellant was convicted of serious offences involving abuse of his family members. His criminal record extends from 1971 to 1997 and consists of some 27 offences for which he has spent the maximum of 45 days incarcerated. He has re-offended five times while bound by probation orders.
[24] The trial judge applied the proper sentencing principles and took all relevant factors into consideration. The global sentence imposed was fit.
Disposition
[25] For these reasons the appeal is allowed and the conviction on Count 4 is quashed. The sentence imposed for that Count was thirty days, concurrent to the sentence imposed for the other offences. The disposition of Count 4 does not affect the global sentence. In all other respects the appeal is dismissed.
RELEASED: Jan. 22, 2007
“JML” “J.M. Labrosse J.A.”
“E.A. Cronk J.A.”
“Robert P. Armstrong J.A.”