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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.S., 2009 ONCA 353

DATE: 20090429

DOCKET: C48630

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

S. S.

Applicant/Appellant

Nicholas A. Xynnis, for the appellant

Greg Skerkowski, for the respondent

Heard and released orally: April 9, 2009

On appeal from the conviction entered by Justice B.G.A. MacDougall of the Superior Court of Justice, dated May 23, 2007, and from the sentence imposed by Justice MacDougall, dated January 11, 2008.

ENDORSEMENT

[1] The appellant advances several related grounds of appeal against his conviction of sexual assault after a trial in the Superior Court of Justice before a judge sitting without a jury.

[2] The first ground of appeal arises from the following finding of the trial judge:

I, however, agree with the submissions of the Crown that it is not necessary for the court to be satisfied that there was sexual intercourse that took place, provided the court is satisfied that there was a sexual assault and/or sexual interference. As the complainant was under age 14 years at the time, her consent is not an issue. If the court is satisfied beyond a reasonable doubt that the defendant, while naked, placed himself on top of the complainant with his penis coming into contact with the complainant’s body that would constitute a sexual assault and sexual interference.

[3] The appellant says that this finding is unreasonable in light of the complainant’s evidence that sexual intercourse took place over an extended period of time, or the finding is flawed because it is founded on a misapprehension of the evidence.

[4] In this, as in any case, it was open to the trial judge, as the trier of fact, to accept some, none or all of the complainant’s evidence. A failure to find that an act of vaginal sexual intercourse took place does not make the finding made in this case unreasonable. The trial judge plainly accepted the complainant’s testimony that the appellant got on top of her and touched her vaginal area with his penis. That the trial judge had a reasonable doubt about the degree of penetration, if any, does not render the decision unreasonable in all the circumstances of this case, including but not only:

i. the complainant’s age at the time of these events;

ii. the complainant’s admitted uncertainty about the extent of penetration; and

iii. the complainant’s evidence about the difficulties the appellant had in achieving penetration.

The finding does not reflect any misapprehension of the complainant’s evidence. At best, rather, it suggests a reasonable doubt with respect to some part of it. There can be no doubt that what the trial judge found was, as a matter of law, a sexual assault.

[5] The appellant also claims error in the trial judge’s interpretation and treatment of certain expert evidence adduced at trial.

[6] A forensic biologist described her findings on examination of the complainant’s underwear for the presence of semen, saliva and blood. A medical doctor, who specialized in paediatrics, gave evidence of his findings on examination of the complainant’s genitalia within days of the alleged offence.

[7] According to the appellant, the trial judge erred by failing to consider the totality of the DNA evidence. To be more specific, the trial judge, the appellant submits, should have taken into account that the forensic biologist found at least three individuals’ DNA samples on the complainant’s underwear, including the complainant’s own saliva. Further, he says the expert acknowledged that there were several ways in which the appellant’s wet semen could have been transferred to the complainant’s underwear. After all, he reminds, the appellant and the complainant shared both bathroom and laundry facilities.

[8] We would not give effect to this ground of appeal.

[9] The defence advanced at trial, supported by the appellant’s own evidence, was that the alleged assault never occurred. The complainant testified that her laundry was kept separate from that of the appellant. She changed her underwear daily and removed the underwear worn on the day of the alleged assault from her laundry hamper in an unwashed state. The trial record is barren of evidentiary support for any innocent or accidental means of transfer. The presence of other DNA samples on the underwear does not detract from the fact that the only DNA profile detected in analysis of the sperm fraction of one of the stains was that of the appellant, and that the possibility of another person with the same profile was 1 in 96 trillion.

[10] The appellant also contends that the trial judge failed to appreciate that the complainant’s version of events was inconsistent with the expert evidence about the condition of her genitalia when she was examined by a doctor days after the alleged offence.

[11] The trial judge was alive to this argument as it was advanced at trial. He did not misapprehend either the substance or the effect of this evidence. It was open to him to find that, on the evidence taken as whole, any conflict between the testimony of the complainant and that of the examining physician did not raise a reasonable doubt about the appellant’s guilt.

[12] The remaining grounds of appeal against conviction may be considered together. They allege a failure to consider whether the evidence as a whole raised a reasonable doubt about the appellant’s guilt (the third step of W. (D.), and a reversal of the onus of proof by imposing on the appellant the burden of establishing a reasonable explanation for the deposit of his wet semen on the complainant’s underwear.

[13] The record puts paid to each claim of error. The trial judge articulated the governing legal principles, including the analysis mandated by W. (D.). He considered the cumulative effect of all the evidence, including the complainant’s testimony, the expert evidence, the appellant’s denial and the evidence offered to show that the appellant lacked the opportunity to commit the offence. He found the allegations proven beyond a reasonable doubt. He was under no obligation to refer to and reconcile every syllable of evidence uttered at trial. His reasons are faithful to the principles he articulated and reflect no misapprehension of evidence or of the governing legal principles. He did not shift the onus of proof either expressly or by necessary implication.

[14] The appeal from conviction is dismissed.

[15] The appellant also seeks leave to appeal sentence. The trial judge imposed a sentence of imprisonment in a federal penitentiary for a term of three years.

[16] This offence involved the abuse of an 11 year old child on a single occasion by a mature adult to whose care the complainant had been entrusted by her father. The appellant is a mature, remorseless recidivist whose prior convictions include offences against the person of others, albeit not sexual offences, and repeated violations of probationary terms. Indeed, the appellant was on probation at the time he committed this offence.

[17] In convicting the appellant, the trial judge found that “in all of the circumstances it is a reasonable inference to make that [the appellant’s sperm] had got [on the complainant’s underwear] as a result of him lying naked on top of her while she was naked for some period of time.”

[18] In sentencing the appellant, the trial judge recited, and appears to have accepted the complainant’s testimony that the appellant had laid on top of her and that he had tried to insert his penis into her vagina and that he had difficulty doing so.

[19] The basis on which the trial judge sentenced the appellant appears to reflect a more invasive sexual assault than that for which he had found the appellant guilty. While we acknowledge that the absence of penetration does not automatically relegate the sexual abuse of a child to a lower range of sexual offence, there is no question that lying on top of someone is less invasive than attempted sexual intercourse. Accordingly, we are of the opinion that the trial judge erred. Consequently, we are called upon to impose a fit sentence. In our opinion, having regard to all of the circumstances of this offence and the offender who committed it, a fit sentence is imprisonment in the penitentiary for two years.

[20] Accordingly, leave to appeal sentence is granted, the appeal is allowed and a sentence of imprisonment in a federal penitentiary for a term of two years is imposed in lieu of the sentence imposed at trial.

“K.M. Weiler J.A.”

“E.E. Gillese J.A.”

“David Watt J.A.”