WARNING
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Savage, 2011 ONCA 107
DATE: 20110208
DOCKET: C49883
COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
William Savage
Appellant
Joseph R. Jakabfy, for the appellant
Michelle Campbell, for the respondent
Heard and released orally: January 28, 2011
On appeal from the conviction entered on November 13, 2007 and the sentence imposed on September 24, 2008, by Justice John D. Keast of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant was convicted of sexual interference of a nine-year old developmentally delayed girl. He was sentenced to 18 months’ imprisonment followed by three years’ probation. He appeals from conviction and seeks leave to appeal sentence.
[2] On the conviction appeal, the appellant argues that the verdict is unreasonable. He also seeks to introduce fresh evidence by alleging ineffective assistance of counsel at trial. He says his trial counsel was inadequately prepared for trial and inadequately represented him during the two day trial.
[3] He appeals his sentence on the ground that it is manifestly unfit.
[4] The court found it unnecessary to call on the Crown in this appeal.
THE CONVICTION APPEAL
[5] At the time of the alleged incident, the complainant was nine years old. She functions at a cognitive level some years younger than her actual age. She and her father and grandmother lived in the appellant’s house. The appellant was the grandmother’s boyfriend. He was a truck driver and away from home a significant amount of the time. However, the appellant would occasionally look after the complainant when her father and grandmother went out to play bingo on Friday evenings. The incident allegedly occurred on one such occasion.
[6] The complainant was sitting on a couch watching television. The appellant sat next to her. He had been drinking. He touched her hips and then moved his hands towards her breasts. She flicked his hands off and told him not to touch her. She then got up and went to the computer to check her emails. He came up behind her, put his hands on her shoulders and again moved them towards her breasts. She again flicked his hands off of her and told him not to touch her. Some six years after the incident, the complainant disclosed the incident.
[7] The trial lasted a single day. Three witnesses, one of whom was the complainant, testified. The appellant did not. The sole issue was credibility.
[8] The trial judge was alive to any inconsistencies and discrepancies in the complainant’s testimony. To the extent there was conflicting evidence from the appellant’s grandmother on secondary matters such as the location of the computer and the ability to access the internet, the trial judge considered the evidence and preferred that of the complainant, whom he found to be credible and reliable.
[9] We see no merit in the allegation that the verdict was unreasonable. The inconsistencies that the appellant raises before this court are minor matters. To the extent that the appellant’s submissions flow from the suggestion that the complainant’s testimony ought not to have been accepted because of her diminished mental capacity and her delay in reporting, we reject this submission. The trial judge gave cogent reasons for finding her evidence credible and reliable. He was entitled to accept that evidence and convict on it. His reasons demonstrate that he considered each and every argument advanced by the defence at trial and that he carefully analysed those arguments. He gave full explanations for why he rejected them.
THE FRESH EVIDENCE APPLICATION
[10] We refuse to admit the fresh evidence because, in our view, the appellant has not made out his claim of ineffective assistance of counsel.
[11] Having considered the fresh evidence, we find that the appellant’s trial counsel offers a far more credible and reliable history of his interaction with the appellant and that there were good tactical reasons for the decisions that he made during the course of the trial. We also note that the appellant continued to retain his trial counsel on a different sexual interference charge after the trial in question. In any event, after considering the fresh evidence, we are of the view that there was no incompetence on the part of trial counsel and there was no miscarriage of justice.
THE SENTENCE APPEAL
[12] The appellant submits that the sentence fails to reflect the nature of the sexual touching, which was fleeting, isolated and did not escalate in seriousness. Accordingly, he suggests, the sentence was unfit.
[13] The Crown acknowledges that the acts in question might not normally justify an 18 month sentence of incarceration but says that the sentence in this case was fit.
[14] We accept the Crown’s submission on this matter. There is no basis on which to interfere with the sentence imposed.
[15] The trial judge gave detailed, thoughtful reasons for sentence, which properly took into account the aggravating factors of this offence, the appellant’s long standing predatory history of abusing children to whom he stood in a position of trust, and the trial judge’s factual finding that this appellant is at a high risk to re-offend. The appellant was in a position of trust over his victim, a young and particularly vulnerable child because of her special circumstances. The psychological impact on her has been considerable.
[16] In its factum, the Crown had indicated that it would ask this court to allow the sentence appeal only to the extent of adding the following condition to the 3 year probationary term:
Not to be in the presence of anyone under the age of 16 unless continuously in the company of another supervising adult other than Y.L.
[17] The Crown advised the court that she had spoken with counsel for the appellant before the oral hearing of the appeal and that he had stated that he did not object to the imposition of that additional condition. The court confirmed with counsel for the appellant that he had no objection to the addition of this condition.
[18] We are satisfied that imposition of this additional probationary condition is warranted.
DISPOSITION
[19] Accordingly, we dismiss the conviction appeal, grant leave to appeal sentence and allow the sentence appeal only to the extent of adding the probationary condition in the terms requested by the Crown, as set out above.
“Doherty J.A.”
“J. I. Laskin J.A.”
“E. E. Gillese J.A.”