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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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.

Court File and Parties

CITATION: R. v. R.J., 2009 ONCA 138

DATE: 20090213

DOCKET: C47776

COURT OF APPEAL FOR ONTARIO

Doherty, Simmons and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.J.

Applicant (Appellant)

Peter Lindsay, for the appellant

Linda A. Shin, for the respondent

Heard and orally released: February 5, 2009

On appeal from the conviction entered by Justice Margaret P. Eberhard of the Superior Court of Justice dated February 27, 2007 and the sentence imposed on September 28, 2007.

ENDORSEMENT

[1] The appellant is the complainant’s father. He was convicted of one count of sexual assault, one count of sexual touching and one count of incest. The charges arose out of three incidents that occurred within about a one month period. The appellant appeals his convictions. He also appeals the total sentence of 3 ½ years imposed at trial.

[2] Counsel for the appellant argues that various statements made by the trial judge throughout the trial, in her reasons for judgment and in her reasons for sentence, when considered cumulatively, create the impression that the trial judge allowed sympathy for the complainant to impact on her verdict. Counsel submits that the trial judge’s comments, at a minimum, create a reasonable apprehension that the trial judge was predisposed to favour the complainant and to reject the appellant’s contention that the complainant was fabricating her allegations in concert with her mother to gain revenge on the appellant for his having ignored the complainant and her mother throughout the complainant’s life.

[3] We agree with counsel that the comments must be considered cumulatively and that the entire trial record must be examined and the comments placed in their proper context. We reject counsel’s submissions in respect of the proceedings prior to the verdict. We do not see anything done during the trial itself that could reasonably suggest any predisposition to favour the complainant. The trial judge’s conduct of the trial was even-handed throughout the hearing of the evidence and the taking of the submissions from counsel. Her interventions during cross-examination were few in number, reasonable, made in temperate language and did not in any way limit the conduct of the defence. The worst that can be said is that one or two of the interventions may have been unnecessary and that one comment made by the trial judge at the end of a lengthy cross-examination of the complainant, – she referred to the counsel as “badgering” the witness – may have been somewhat harsh.

[4] We also see no merit in the submission that the trial judge’s ruling when he allowed defence counsel to further cross-examine the complainant after an amendment to the indictment displayed a predisposition in favour of the complainant. The trial judge was properly concerned that the further cross-examination should be limited to the areas brought into controversy by the amendment of the indictment. The cross-examination had already been lengthy and the trial judge wanted to keep proper limits on the further cross-examination. The trial judge, as we read the record, told defence counsel to advise the Crown of the areas in which she proposed to conduct further cross-examination before the cross-examination started. The trial judge did this so that the Crown could advance any objections it might have before the witness was on the stand. This procedure would avoid further fracturing of the cross-examination of the witness that would have occurred had objections been made on a question-by-question basis.

[5] We see nothing unreasonable in the procedure followed by the trial judge to ensure that the further cross-examination stayed within appropriate bounds. The procedure seemed to work. Defence counsel conducted a further cross-examination that was not improperly curtailed or limited in any way.

[6] This brings us to the trial judge’s reasons for judgment, the aspect of the trial that raises concerns. There are two passages in the trial judge’s reasons that could be taken as indicating that the complainant was cruelly and unfairly treated in the course of the trial because defence counsel vigorously cross-examined her in an effort to show that she was fabricating her story. Counsel for the appellant contends that there was nothing improper in the cross-examination. He submits that the trial judge’s mischaracterization of that cross-examination reflects a sympathy for the complainant, that may well have factored into the trial judge’s assessment of the case. Counsel submits that the reasons of the trial judge could reasonably be read as an abandonment of the presumption of innocence in favour of a presumption favouring the complainant’s evidence.

[7] These passages are troubling. For example, in reference to the complainant’s reaction to her cross-examination, the trial judge said:

She did, however, endure it unshaken and the cruel suggestions that the allegations were concocted for revenge were never supported by one scintilla of evidence. Further, [the complainant] basically had to endure it alone. [Emphasis added.]

[8] There is nothing unfair or abusive in conducting a probing, vigorous and challenging cross-examination, even where the witness is a child complainant. Counsel’s duty to her or his client will sometimes require nothing less. In this case, the defence claimed that the complainant was lying. She had to be attacked in cross-examination. We see no basis in the record to support the assertion that the conduct of the defence was in any way improper or abusive of the complainant. That, of course, is not to say that the trial process was not a very difficult one for the complainant.

[9] The two impugned comments made by the trial judge must, however, be placed in the context of the entirety of her reasons and her conduct of the trial. As we have already said, the trial judge conducted the trial in an entirely proper manner. In her reasons, the trial judge reviewed the evidence in a detailed and accurate manner. She carefully analyzed that evidence and considered in detail each of the three prongs of the position advanced by the defence. The trial judge’s examination of the complainant’s credibility and the reliability of her evidence was thorough and accurately reflects the record. The trial judge alerted herself to the presumption of innocence. She properly reminded herself of the principles in R. v. W.(D.). Finally, she made it clear that she should not, and would not, infer guilt from the appellant’s failure to assume any of the responsibilities that he should have taken on as the father of the complainant.

[10] When the troubling comments are considered in this context, we think the trial judge must have been describing the impact of the cross-examination on the complainant. While some of the wording may be unfortunate, we take the trial judge as in effect acknowledging in the course of assessing the complainant’s evidence that some of the questions put to her were very painful to answer and to her would seem cruel and abusive. Viewed in that light, those comments do not suggest any predisposition in favour of the complainant.

[11] Counsel also refers to certain comments made with respect to the complainant in the reasons for sentence. Post-conviction, we see nothing wrong with the trial judge empathizing with the victim and recognizing and addressing the pain that the victim has suffered, not only as a result of the offences, but also by virtue of having to proceed through the difficulties of the criminal process. We take nothing from the reasons for sentence that would suggest a bias in favour of the complainant prior to conviction.

[12] The appellant also argued that an amendment to the indictment made by the trial judge at the end of the Crown’s case was improper. The amendment changed the dates between which the offences were alleged to have occurred and was based on the complainant’s evidence. We agree with the trial judge that there was no prejudice established. The trial judge referred to the possibility of prejudice and indicated that she could revisit her ruling should any such prejudice develop. None did. The amendment was properly made under s. 601 of the Criminal Code.

[13] The conviction appeal is dismissed.

[14] Concerning sentence, the appellant’s primary submission is that the trial judge erred in principle by treating the appellant’s lack of remorse as an aggravating factor and by declining to consider a conditional sentence for that reason.

[15] We disagree. Although the trial judge referred at one point in her reasons to the increased impact on the complainant because she was put through a trial and stated that she might have considered a conditional sentence had there been any sign of regret or remorse, read fairly, we do not interpret her reasons as treating lack of remorse as an aggravating factor. The trial judge stated specifically that exercising the right to a trial is not an aggravating factor. Further, she recognized correctly that the proper range of sentence for these offences is three to five years. In our view, the impugned passages do no more than recognize that the appellant was not entitled to the significant mitigation that may have arisen from a guilty plea and associated expressions of remorse.

[16] The appellant also claims that the sentence imposed is unfit having regard to other mitigating factors that are present. In particular, his significant health issues which include end stage renal disease, high blood pressure and sleep apnea. We reject this submission. The trial judge carefully considered the appellant’s circumstances, including his health issues. There was no evidence at trial or before us to indicate that the appellant’s health concerns cannot be addressed in the penitentiary. Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.

“Doherty J.A.”

“J. Simmons J.A.”

“E.E. Gillese J.A.”