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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

R. v. T.B., 2009 ONCA 868

CITATION: R. v. T.B., 2009 ONCA 868

DATE: 20091208

DOCKET: C49274

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. B.

Appellant

Alan D. Gold and Vanessa Arsenault, for the appellant

Holly Loubert, for the respondent

Heard and released orally: December 3, 2009

On appeal from the conviction entered on February 4, 2008 and the sentence imposed on August 27, 2008 by Justice Michel Z. Charbonneau of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant’s submissions on his conviction appeal focus on two arguments: one, the trial judge’s treatment of the appellant’s evidence and the complainant’s evidence was uneven and, therefore, unfair; and two, the trial judge failed to address major inconsistencies in the complainant’s evidence. We do not accept either argument.

[2] On the first argument, the appellant points to the trial judge’s reliance on the appellant’s long-winded answers as one basis to reject his evidence. Yet, the trial judge does not similarly criticize R.L.’s long-winded answers. However, as the Crown points out, the trial judge’s real criticism of the appellant’s answers was that they were long-winded where the questions invited short answers without details. By contrast, the answers of R.L., on which the appellant relies, were in response to open-ended questions that invited much longer answers.

[3] On the second argument, it is true that the trial judge did not refer to every inconsistency in the complainant’s evidence. However, the trial judge expressly listed and addressed the important inconsistencies put to him by defence counsel. In the trial judge’s opinion, the inconsistencies in the complainant’s evidence did not affect the reliability or credibility of her testimony. That was an opinion that the trial was entitled to hold on the record before him. We are not persuaded that the inconsistencies not referred to by the trial judge would have affected his credibility assessments. We add that, in our view, the fragments of MSN chat messages were highly inculpatory.

[4] The conviction appeal is, therefore, dismissed.

[5] On the sentence appeal, in our view, 22 months incarceration for an increasingly intrusive breach of trust of a vulnerable young person by her step-father, over an extended period of time was entirely fit.

[6] Accordingly, although leave to appeal sentence is granted, the sentence appeal is also dismissed.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”