Court of Appeal for Ontario

CITATION: R. v. Miller, 2007 ONCA 423

DATE: 20070608

DOCKET: C44054

LASKIN, SIMMONS and GILLESE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

DEREK ALLEN MILLER

Appellant

Counsel:

Joseph Di Luca for the appellant

Joseph Perfetto for the respondent

Heard and released orally: June 4, 2007

On appeal from conviction entered on December 14, 2004, and the sentence imposed on June 10, 2005, by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant advanced two submissions on his conviction appeal and also appeals his sentence.

[2] On his conviction appeal, he contends first, that the trial judge erred in her instruction on the use of the complainant’s videotaped statement; and second, that the trial judge failed to review the evidence in a fair and balanced way. We called on the Crown only on the appellant’s first submission.

[3] The appellant’s first submission is that the trial judge’s instruction invited the jury to use the complainant’s videotaped evidence to bolster her evidence at trial. In support of this submission, he points to this instruction: “Third consider the similarities and differences between the videotape and her evidence at trial”.

[4] We do not accept this submission. The trial judge did not invite the jury to use the videotaped evidence as a prior consistent statement or otherwise explicitly invite the jury to use the evidence impermissibly as, for example, for corroboration. Also, there is no indication in the record that either counsel invited the jury to use the videotaped statement improperly.

[5] The trial judge’s instruction directed the jury to focus on whether they accepted the complainant’s evidence on the videotape. She then gave the jury several factors to consider of which the impugned instruction was but one. We are not persuaded that she erred in doing so.

[6] On the appellant’s second submission against conviction, we are not persuaded that the trial judge unfairly summarized the Crown and defence evidence. The defence was diligent throughout the trial and his failure to object to this aspect of the charge lends support to the Crown’s position that the charge was neither unfair nor unbalanced.

[7] On the sentence appeal, we are not persuaded that the sentence imposed by the trial judge was unreasonable. The sentence was within the range recognized by this court. The trial judge referred to the mitigating as well as the aggravating factors. As the appellant concedes, the trial judge made no error in treating these offences as akin to a breach of trust. The appellant’s submission comes down to the proposition that we should weigh the relevant factors differently. That would amount to an unjustified interference with the trial judge’s discretion.

[8] Accordingly, both the conviction and the sentence appeal are dismissed.

“John Laskin J.A.”

“Janet Simmons J.A.”

“E.E. Gillese J.A.”