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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
CITATION: R. v. J.J., 2008 ONCA 133
DATE: 20080226
DOCKET: C44768
COURT OF APPEAL FOR ONTARIO
ROSENBERG, SIMMONS and LAFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
J. J.
Appellant
Aswani K. Datt for the appellant
Daniel Guttman for the respondent
Heard: February 20, 2008
On appeal from conviction by Justice Francine Van Melle of the Superior Court of Justice dated October 14, 2005
BY THE COURT:
[1] The appellant appeals his conviction for sexual assault and from the sentence of three years imprisonment. At the conclusion of oral argument we indicated that the appeal was dismissed for reasons to follow. These are those reasons.
Section 11(b) of the Charter
[2] The application for a stay of proceedings was heard by Speyer J. as a pre-trial motion. While there had been a lengthy period from when the appellant was charged in October 2001, the only serious complaint concerned the period following the declaration of a mistrial, because of a hung jury, in February 2004. Unfortunately, the case was not reached on September 24, 2004, the date set for the retrial. The court was able to offer new trial dates in November 2004, but defence counsel was unavailable. Because of defence counsel’s commitments, the trial could not proceed until March 2004.
[3] The motion judge considered most of the time from the declaration of the mistrial until the new trial date as neutral. While we agree with the appellant that some part of that period could be considered institutional delay, in particular the period from September 24 until November, we are satisfied that the motion judge’s conclusion that there was no violation of s. 11(b) was correct. We are not unsympathetic to the position of busy counsel who because of commitments, including commitments as a result of the “blitz court” in the Ontario Court of Justice, is unable to reschedule a two week trial immediately. However, the dates suggested by the trial court for the new trial date were not unrealistic. We agree with the motion judge when he said:
[W]hile an accused has a right to counsel of choice and that counsel is unavailable because of prior trial commitments, it is wrong to attribute delay to the system when, in fact, the system could have accommodated an expeditious trial.
[4] The motion judge properly balanced the relevant factors including the public interest in the trial on the merits of a serious allegation of sexual assault. We also agree with the motion judge that there was an absence of actual prejudice over and above the prejudice that may be inferred from the delay itself. The specific prejudice referred to in the appellant’s affidavit arose from the fact that charges were laid and that two trials were necessary, not from institutional delay.
[5] To conclude, we consider it unfortunate that this matter was not reached on the first trial date following the mistrial due to a lack of judicial resources. However, the total institutional delay in this matter was approximately twenty-three months. While this period of delay is somewhat in excess of the Morin guideline, it is important to note that the Morin guideline is simply that a guideline—it is not a fixed limitation period to be applied in a mechanical way. Taking account of all of the circumstances in this case, including the important factors that it involved a two week trial and that a second trial was necessary because of a hung jury, we are not persuaded that the total institutional delay was unreasonable.
Bad Character Evidence
[6] Counsel rightly concedes that the complainant was properly allowed to refer to the acts of violence in the household, especially against the complainant’s mother, since this evidence would assist the jury in understanding why the complainant delayed in reporting the abuse. The appellant submits, however, that the trial judge, Van Melle J., erred in permitting the Crown to lead evidence of the proceedings at the appellant’s guilty plea for assaulting the complainant’s mother. We are satisfied that the trial judge did not err in admitting this evidence. The trial judge severely limited the amount of evidence that she would permit to be led to show the acts of violence in the home. For example, she would not permit the mother and another witness to testify about the violence and confirm the complainant’s testimony.
[7] The proceedings at the appellant’s guilty plea, however, were independent evidence that confirmed the complainant’s testimony and it related to an event that occurred when the sexual assaults were allegedly occurring. The evidence was thus highly probative on the issue of delay in reporting. Further, given the other evidence testified to by the complainant, which was admittedly properly admitted, the guilty plea proceedings were of relatively limited prejudicial effect. Further, excluding the evidence of the conviction would have left the jury with an incomplete and potentially misleading picture.
Admissibility of the s. 715.1 Statement
[8] The trial judge permitted Crown counsel to introduce a video taped statement made by the police of an interview of the complainant pursuant to s. 715.1 of the Criminal Code. The statement was taken within days of the complaint to the police. In the statement itself, the complainant recounts sexual abuse by the appellant that ended when she was twelve years of age, or three years before the complaint. However, as trial counsel acknowledged in his submissions on the voir dire, at the preliminary inquiry, the complainant recounted further abuse by the appellant that lasted until a few months before the complaint. As such, trial counsel’s main argument did not focus on whether the videotape was made within a reasonable time. Rather, his submissions largely concerned whether the video taped statement was necessary, given the complainant’s fairly good memory of the events. On appeal, however, Mr. Datt, who was not trial counsel, submits that the videotape was not made within a reasonable time after the alleged event.
[9] Taking account of all of the circumstances in this case, including the fact that defence counsel at trial acknowledged that the complainant had previously given evidence that the alleged abuse continued past her twelfth birthday, the age of the complainant when she made the video statement, the difficulties she experienced in giving her evidence, and the reasons for the delay in reporting including the complainant’s continuing relationship with the appellant and her half-brothers, in our view, it was open to the trial judge to permit the complainant to adopt the video statement pursuant to s. 715.1 of the Criminal Code.
[10] Accordingly, the appeal from conviction is dismissed.
Sentence Appeal
[11] The appellant submits that the trial judge erred in principle in taking into account the appellant’s lack of remorse as an aggravating circumstance. The trial judge’s reasons on this issue are at least ambiguous and we have therefore proceeded on the basis that there was an error in principle. Accordingly, it is open to this court to consider the fitness of the sentence without regard to the usual deference paid to sentencing decisions. However, in our view the three-year sentence was not unfit. This was manifestly not a case for a conditional sentence. The appellant, who was in a position of trust with the complainant, repeatedly sexually assaulted her from when she was nine years of age. The assaults included attempted sexual intercourse and caused some physical injury as well as serious emotional trauma. The appellant, as noted, had a prior record for assault. Notwithstanding the lengthy period that the appellant has been on bail, without incident, we are satisfied that a penitentiary sentence was required. The terms of the bail were not particularly stringent and were modified within months of being imposed to permit the appellant to resume a relationship with his new family.
[12] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.
Signed: “M. Rosenberg J.A.”
“Janet Simmons J.A.”
“H. S. LaForme J.A.”
RELEASED: “MR” February 26, 2008