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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. R.M., 2011 ONCA 132

DATE: 20110216

DOCKET: C51123

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Watt JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

And

R.M.

Appellant

William Thompson, for the appellant

Nadia Thomas, for the respondent

Heard: February 10, 2011

On appeal from conviction entered by Justice R. Del Frate of the Superior Court of Justice, sitting with a jury, dated May 26, 2009 and sentence imposed dated July 30, 2009.

By The Court:

[1] The appellant appeals from his conviction by Del Frate J. and a jury on two counts of sexual assault, and counts of obstruct justice, assault with a weapon and assault. He also appeals from the sentence totalling four years and four months imprisonment. The appellant was originally charged with a total of 12 counts. The prosecution case depended upon the evidence of the appellant’s former spouse who testified to numerous incidents of forced sexual acts and assaults and two assaults on her daughter.

[2] The principal ground of appeal concerns the trial judge’s failure to give the jury a limiting instruction as to the use of prior consistent statements that were adduced through the complainant and members of her family. In our view, no substantial wrong or miscarriage of justice resulted from the failure to give the limiting instruction. The evidence of these prior statements was properly admitted to rebut the clear allegation of recent fabrication; it being the defence theory that the complainant fabricated the allegations to ensure that the appellant would not obtain custody of their children following their separation.

[3] Of the several prior consistent statements admitted, only one related to a count upon which the complainant was convicted. This statement came from the complainant’s mother in relation to count #1 and its contents were never disclosed. All that the jury heard was that the complainant told her mother she was very scared and the witness advised the complaint to go to a doctor or to the police. While somewhat more detailed complaints relating to other counts were adduced both by the Crown, and by defence counsel in cross-examination, the appellant was acquitted on those counts. We also note that the appellant relied upon some of the prior statements because they were inconsistent with the complainant’s testimony. Defence counsel at trial, not Mr. Thompson, never sought a limiting instruction and did not object to the charge to the jury. We are satisfied that the appellant was not prejudiced by the absence of a limiting instruction.

[4] The only other ground of appeal concerned aspects of cross-examination by Crown counsel, not Ms. Thomas, of the appellant. We have examined the various complaints and are satisfied that the impugned cross-examination was harmless when considered in context. We agree with Ms. Thomas’ careful analysis of the cross-examination in her factum. Accordingly, the appeal from conviction is dismissed.

[5] The appellant also appeals from the sentence on two bases. First, he submits that the trial judge erred in application of s. 718.2(e) of the Criminal Code and the principles set out in R. v. Gladue (1999), 133 C.C.C. (3d) 385 (S.C.C.). When the appellant’s trial counsel raised the application of Gladue, the trial judge asked counsel to outline the unique systemic background factors in the case. Counsel replied as follows: “Actually in this particular case there do not appear to be any.” Defence counsel went on to state that the trial judge still had to consider the appellant’s aboriginal heritage. The trial judge agreed. The trial judge returned to the question of the application of Gladue in his reasons for sentence noting that this court has held that, “the Gladue principles mandate a different methodology for assessing a sentence for an aboriginal offender but not necessarily a different result”. The trial judge also noted, as had earlier been conceded by defence counsel, that “the systemic factors commonly associated with aboriginals are not present”.

[6] On appeal, counsel for the appellant submits that the trial judge erred in failing to take into account the greater adverse effect of incarceration on aboriginal offenders, even those not necessarily impacted by the systemic and background factors referred to in Gladue. We are not persuaded that the trial judge did make that error. He referred to the fact that Gladue does require a different methodology and he received accurate submissions from both Crown and defence counsel on the issue.

[7] As noted in Gladue at para. 78, the more violent and serious the offence, the more likely it is as a practical reality that the term of imprisonment for the aboriginal offender will be similar to other offenders. This was such a case. Over many years, the appellant terrorized and subjugated the much younger complainant, on one occasion causing serious bodily harm requiring medical intervention. On another occasion he intimidated her to provide false information to police, which led to the obstruct justice charge. The offences required a significant sentence of imprisonment. The sentence imposed by the trial judge was within the appropriate range.

[8] The appellant also submits that the trial judge erred in failing to give the appellant credit for 34 days of pre-sentence custody and for the many months that he was on house arrest. At the sentencing, the appellant’s counsel sought a conditional sentence of imprisonment and in support of that submission, he said the following:

So I’m asking that Your Honour consider, he has been on very strict bail. He has been unable to work for the last several years.

[9] Defence counsel did not ask the trial judge to reduce the prison sentence he would otherwise impose by giving credit for the pre-trial custody, presumably because he was seeking a conditional sentence of imprisonment. Thus, it does not appear that the brief period of pre-sentence custody, immediately after the appellant’s initial arrest, was drawn to the trial judge’s attention.

[10] We see no merit to the submission concerning the bail conditions. The trial judge explicitly referred to the strict bail as one of the mitigating factors relied upon by the defence. However, it is likely that had the trial judge been informed of the short period of pre-trial custody he would have given the appellant credit for it; we would allow the sentence appeal to that extent. In all other respects the appeal is dismissed.

[11] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is granted, the appeal is allowed and the sentence on count #8 is varied to one month imprisonment consecutive.

Signed: “M. Rosenberg J.A.”

“Robert J. Sharpe J.A.”

“David Watt J.A.”

RELEASED: “MR” February 16, 2011