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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Escobar, 2010 ONCA 534
DATE: 20100723
DOCKET: C48712
COURT OF APPEAL FOR ONTARIO
Doherty, Gillese and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Juan Heber Escobar
Applicant (Appellant)
Nicholas A. Xynnis, for the appellant
Andreea Baiasu, for the respondent
Heard and orally released: July 20, 2010
On appeal from the conviction entered by Justice B. Wein of the Superior Court of Justice dated January 24, 2008 and the sentence imposed on April 2, 2008.
ENDORSEMENT
[1] The appellant was convicted on two charges of sexual assault, one involving the complainant, "D." and the other the complainant, "M." The complainants were cousins.
[2] There are essentially three arguments raised on the conviction appeal. The first argument pertains to the trial judge's ruling that the evidence of one complainant was admissible as similar fact evidence in respect of the allegations involving the other complainant. While the trial judge so ruled, she also made it clear that apart entirely from her similar fact evidence ruling, she would have convicted the appellant on each count relying only on the evidence as it related to that complainant.
[3] The appellant argues that the trial judge erred in finding that the evidence of the complainant, "M.", was not tainted by her knowledge of the complaint made by the complainant, "D." The appellant argues that the trial judge unreasonably found that there was no tainting or as the trial judge called it "collusion".
[4] The trial judge was alive to the issue and she reviewed the evidence relating to the potential tainting in some detail. Based on her assessment of the conduct of the complainant, "M.", when confronted with the videotaped complaint of "D.", the trial judge was satisfied that the complaint made by "M." was not tainted by the content of the videotape. It was open to the trial judge to make that finding.
[5] The second ground of appeal concerns certain parts of the evidence that the appellant argues the trial judge did not adequately address in her reasons for judgment. The appellant refers to evidence of the apparent friendly relationship between both complainants and the appellant throughout the relevant times and to the evidence of the appellant's limited opportunity to commit the offences. On the evidence, the appellant was seldom alone with the complainants for any appreciable time.
[6] The trial judge summarized all of this evidence in the course of her reasons for judgment. The evidence relied on by the appellant does not necessarily offer any support for the defence position. Rather, it is circumstantial evidence that could, depending on the trial judge's assessment, either offer some support for the defence or be essentially neutral and not supportive of the Crown or the defence.
[7] Trial judges are not required to expressly deal with each and every piece of evidence in the course of giving reasons for judgment. There can be no suggestion that the evidence summarized above was so central to the defence case as to demand express examination by the trial judge in her reasons for judgment.
[8] It is clear from the reasons as a whole that the trial judge did not draw the inferences favourable to the defence from the evidence referred to by the appellant in support of this ground of appeal. The proper inference to be drawn was up to the trial judge. Her failure to expressly indicate that she did not find support for the defence in certain specific parts of the evidence does not render her reasons for judgment inadequate or otherwise result in a miscarriage of justice.
[9] The appellant argues that the trial judge misapprehended the medical evidence when she found that it offered some confirmation for the allegation made by "D." "D.'s" parents took her to the doctor the morning after the alleged assaults were disclosed. His observations of her vagina were consistent with a rubbing action in that area sometime shortly before the doctor's observations. While the doctor's observations were arguably somewhat different than the parents, we agree with the trial judge that those observations did offer some support for "D.'s" allegation that she had been sexually assaulted by the appellant. Her description of that assault was consistent with the kind of rubbing that would result in the observations seen by the doctor the next day.
[10] The conviction appeal is dismissed.
[11] With respect to the sentence appeal, we see no error in principle in the trial judge's reasons. The total sentence imposed of four years was within the range fixed by this court and cannot be said to be clearly excessive. Leave to appeal sentence is granted and the appeal is dismissed.
"Doherty J.A."
"E.E. Gillese J.A."
"Robert P. Armstrong J.A."