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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. S.J.M., 2009 ONCA 244
DATE: 20090319
DOCKET: C47336
COURT OF APPEAL FOR ONTARIO
O’Connor ACJO, Rosenberg and Goudge JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
S. J. M.
Appellant
Paul Calarco for the appellant
Karen Shai for the respondent
Heard: February 25, 2009
On appeal from conviction by Justice Donald S. Ferguson of the Superior Court of Justice, sitting without a jury, dated May 18, 2007 and sentence imposed dated June 14, 2007.
By The Court:
[1] The appellant appeals his conviction and sentence by Ferguson J. on one count of sexual assault and one count of sexual interference. At the conclusion of argument, the court entered a conditional stay of the conviction for sexual assault, but otherwise dismissed the appeal from conviction and sentence. We indicated that the court would provide reasons for this disposition. These are those reasons.
[2] The appellant submitted that, in his reasons, the trial judge placed an onus on the appellant to disprove the Crown’s case, placed undue emphasis on certain factors in assessing the credibility of the complainant and took into account irrelevant factors in assessing the credibility of the appellant.
[3] The trial judge’s reasons are not reasonably capable of bearing the interpretation that he placed any onus on the appellant to disprove the Crown’s case. Merely listing a series of factors, such as that the complainant gave a coherent and consistent account and that there was no suggestion that the account had changed since the first disclosure, does not reverse the burden of proof.
[4] Counsel for the appellant concedes that the trial judge could properly rely upon such factors as a demonstrated lack of motive to fabricate and an absence of hallmarks of unreliability in assessing the complainant’s credibility. He submits, however, that the trial judge placed undue weight on some of these factors. We see no basis for this submission. The trial judge listed fourteen factors that, in his view, supported a finding in favour of the complainant’s credibility. We see nothing to show that the trial judge placed unreasonable emphasis on any one of them.
[5] The appellant submits that the trial judge improperly took into account certain factors in finding against the appellant’s credibility. Again the trial judge provided a lengthy list of reasons for rejecting the appellant’s testimony. Several of those factors depended upon the trial judge’s advantage of having seen and heard the appellant testify. We are not persuaded that the trial judge placed undue emphasis on those factors or on the appellant’s demeanour generally. See R. v. M. (R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at paras. 48-50.
[6] Counsel for the appellant singled out one portion of the trial judge’s reasons as follows:
If [the appellant] were innocent, it seems unlikely that when [he] learned that the family was literally splitting up over the allegations, he would not make any enquiry as to what was alleged against him so he could try to mend the families’ previously close relationship;
[7] As this court said in R. v. Stark (2004), 2004 39012 (ON CA), 27 C.R. (6th) 190 at para. 16: “The manner in which an innocent person should react to an allegedly false allegation is an uncertain basis for drawing an adverse inference against an accused.” However, the court went on to point out that in some circumstances there may be an evidentiary basis for drawing an inference against an accused because of his response to an accusation. It may be that this is one of those cases where there was an evidentiary foundation based on the circumstances existing in this particular family. In any event, this was but one of many factors the trial judge gave for rejecting the appellant’s evidence and we are not satisfied that the trial judge gave this factor undue emphasis as compared to the more compelling factors such as the appellant’s version of the Good Friday incident, which was contradicted by other evidence that the trial judge accepted.
[8] The appellant submits that the trial judge erred in entering convictions for sexual assault and sexual interference. This issue was not raised before the trial judge. The facts underlying both convictions are the same. Thus, the factual nexus is clearly made out. We are also satisfied that there is a sufficient legal nexus. The legal nexus is similar to the legal nexus that the court found to exist in Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729 itself. See R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480 at 497. The elements of the sexual interference offence are substantially the same or alternative to the elements of sexual assault either on the basis that one element is “a particularization of another element” or “there being more than one method, embodied in more than one offence, to prove a single delict”: R. v. Prince at pp. 500-2.
[9] This court has previously held that in those circumstances one of the convictions should be stayed in accordance with the rule against multiple convictions: R. v. M. (M.M.) (1998), 1998 1659 (ON CA), 122 C.C.C. (3d) 563 (Ont. C.A.). We were informed by counsel that in R. v. Wing, 2008 ONCA 618 a somewhat different argument may have been made, not directly addressing the application of Kienapple to the charges of sexual assault and sexual interference. Thus, this court’s very brief endorsement in Wing should not be read to be inconsistent with the well established jurisprudence in Kienapple, Prince and M. (M.M.). We also note that courts in other provinces have applied the Kienapple doctrine to charges of sexual interference and sexual assault: R. v. Alyea (1997), 1997 12538 (BC CA), 100 B.C.A.C. 241, and R. v. C.G.F., 2003 NSCA 136.
[10] Accordingly, the appeal from conviction for sexual assault is allowed and a conditional stay is entered. The appeal from conviction for sexual interference is dismissed.
[11] The trial judge imposed a sentence of seven months imprisonment concurrent on both charges. He carefully considered the possibility of a conditional sentence but rejected it as being inconsistent with the objectives of denunciation and deterrence. We did not understand counsel to suggest that the trial judge erred in principle or that the sentence was unfit. Counsel’s principal submission before this court was that a conditional sentence should be imposed because of the health issues now faced by his spouse. We have considered this material but, in our view, the fresh evidence does not make out a case for a conditional sentence.
[12] This was a very serious offence involving sexual abuse of a boy over an extended period of time by his uncle. The appellant was in a position of trust, the complainant having been left in his care when the incidents occurred. The appellant’s spouse’s medical issues do not represent such exceptional circumstances as to justify imposing a conditional sentence.
[13] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.
Signed: “D. O’Connor A.C.J.O.”
“M. Rosenberg J.A.”
“S.T. Goudge J.A.”
RELEASED: “”DOC” March 19, 2009