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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

CITATION: R. v. Bradley, 2008 ONCA 179

DATE: 20080312

DOCKET: C44901

COURT OF APPEAL FOR ONTARIO

GILLLESE, ARMSTRONG and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

GRANT BRADLEY

Appellant

Timothy E. Breen for the appellant

Karen Shai for the respondent

Heard: February 27, 2008

On appeal from the conviction entered by Justice J. C. Kennedy of the Superior Court of Justice dated August 8, 2005, and sentence imposed on January 23, 2006.

ENDORSEMENT

[1] The appellant was an experienced police officer. K. was a young aboriginal woman pursuing her dream of becoming a police officer. She met the appellant in 1989 during a high school co-op placement with the local police department where he worked. The appellant took her under his wing. She went on many “ride-alongs” with him. He even let her drive his personal sports car. He became her friend and mentor.

[2] In 1992, K. was at college. While home one weekend, K. invited the appellant to her house. He came over. That night, the appellant raped her vaginally and anally. He also demanded oral sex from her. He made degrading comments to her and told her she “owed this” to him.

[3] At the time of the event, the appellant was thirty nine years old and the victim was twenty-one years old. The appellant had separated from his wife two weeks earlier.

[4] K. was devastated by the rape. She disclosed what happened to a police officer a year later but did not formally report the matter until 2001.

[5] The two-day judge-alone trial was straightforward. The appellant said the sex was consensual; the complainant said that it was not.

[6] The trial judge unequivocally rejected the appellant’s evidence. He accepted the complainant’s evidence. The appellant was sentenced to four years’ imprisonment. He appeals against conviction and sentence.

[7] The appellant submits that the trial judge erred in applying a stricter standard to the defence evidence, misapprehending the evidence, and misdirecting himself on the burden of proof. He also submits that the trial judge erred in imposing a sentence of four years’ imprisonment.

THE CONVICTION APPEAL

[8] We do not accept that the trial judge applied a stricter standard to the evidence of the defence than to that of the Crown. This was a straightforward case in which the sole issue was credibility. The trial judge was entitled to accept the evidence of the complainant and reject that of the appellant. Absent palpable and overriding error, deference must be shown to the findings of fact made at trial. In the assessment of credibility, trial judges occupy a “singular perch”.

[9] The trial judge rejected the appellant’s version of events and gave detailed reasons for doing so. He did not simply choose between the two competing accounts.

[10] We acknowledge that the trial judge’s reasons for accepting the complainant’s evidence are extremely brief. However, two points are to be made in that regard. First, although he explains in only one paragraph why he accepts her evidence, that determination comes after a lengthy recitation of her evidence. Second, there were no material inconsistencies in the complainant’s evidence that required reconciliation. In fact, only one matter could be described as an inconsistency and that was whether the complainant invited the appellant to her home in-person or over the phone. (It was accepted by both parties that she had issued the invitation.)

[11] Defence counsel, in closing submissions, did not suggest there were any material inconsistencies in the complainant’s testimony. He described the complainant’s inability to recall whether, some thirteen years earlier, she saw the appellant and made the invitation or whether she had phoned him and invited him over, as a matter about which the complainant was “uncertain”.

[12] Further, the trial judge did not hold the appellant to a higher standard because he was an experienced police officer. His references to the fact that the appellant was a police officer at the time of the events were, in part, to explain why he disbelieved certain aspects of the appellant’s testimony.

[13] We see nothing in the second ground of appeal. This was a short trial and the judge extensively reviewed the evidence in the first thirty pages of his reasons, without error.

[14] On the third issue, as the Crown acknowledged, the trial judge did misstate the third limb of the W.D. test: R. v. W.(D.), [1991] 1 S.C.R. 742. However, we are satisfied on a reading of the reasons as a whole that the trial judge properly followed the dictates of W.(D.). His misstatement did not result in a subtle shift in the onus of proof. This was a very experienced trial judge, who is presumed to know the law. He extensively reviewed all the evidence presented to him. He did not believe the appellant’s evidence. The defence evidence as a whole, including that of Dan Blake (a general contractor and friend of the appellant who gave evidence on behalf of the defence) did not raise a reasonable doubt in his mind. He accepted the evidence of the complainant. Based on the whole of the evidence, he was convinced beyond a reasonable doubt of the appellant’s guilt. While his articulation of the third limb was over-brief and resulted in a misstatement, we are satisfied that it was nothing more than that. As the Supreme Court of Canada recently made clear in R. v. C.L.Y., 2008 SCC 2, what is critical is whether the correct burden and standard of proof were applied. We are satisfied that the trial judge made no error in respect of either.

THE SENTENCE APPEAL

[15] The appellant submits that the trial judge erred in treating the appellant’s “fabricated” evidence as an aggravating factor. We agree. In his reasons for sentence, the trial judge stated (at p. 23):

Also a further aggravating factor in my view is that the offender lied and fabricated his evidence as I found it.

[16] The Crown argues that this error is mitigated by the trial judge’s later statement that denial of guilt is not an aggravating factor. We do not accept this submission. The two statements relate to different matters. The latter is the express recognition that an accused person is entitled to maintain his innocence. The former relates to the manner in which the defence is presented. Neither can be treated as aggravating factors for the purposes of sentencing for the reasons given by this court in R. v. Kozy (1990), 1990 2625 (ON CA), 58 C.C.C. (3d) 500 at 506:

Just as an accused should never apprehend that a penalty will flow from a plea of not guilty, there should also be no perceived impingement upon the manner of presenting the defence. This is so whether it be counsel’s viciousness in attacking a complainant or lies told by the accused. The latter may lead to its own penalty on a trial and conviction for perjury, but within the trial for the offence of sexual assault both rank as tactics for the defence, however ill-conceived, and they are embraced within the right to full answer and defence … .

[17] It is apparent from the reasons that the trial judge increased the sentence because of the appellant’s untruthful evidence at trial. As that was a clear error, it falls to this court to establish a fit sentence.

[18] We accept the Crown’s submission that, in the circumstances, the appropriate range of sentence was three to five years. Without in any way diminishing the devastating impact the assault had on the complainant, we find that, in the circumstances, a sentence at the low end of the range is fit. The conviction was for a single count of sexual assault. There was no violence apart from that which is inherent in such an offence. The offence had occurred many years prior to trial and the appellant, a man in his early fifties, had no prior criminal record. In addition, there was much evidence on his otherwise unblemished character and positive role as a father, especially to his two youngest children.

DISPOSITION

[19] Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted, that appeal is allowed and the sentence is varied to three years’ imprisonment, all other aspects of the sentence to remain the same.

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”