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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. C.D., 2012 ONCA 696
DATE: 20121016
DOCKET: C52677
Winkler C.J.O., Rosenberg and Hoy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
C.D.
Appellant
Paul Calarco, for the appellant
Grace Choi, for the respondent
Heard: October 9, 2012
On appeal from the conviction entered on June 4, 2010 and the sentence imposed on September 20, 2010 by Justice Thomas M. Dunn of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant is now a quadriplegic. Following a very short trial by jury, he was convicted of five counts of sexual assault and sentenced to 30 months in the penitentiary.
[2] The appellant appeals both his conviction and the sentence imposed.
[3] For the reasons that follow, we dismiss the appeal against conviction, grant leave to appeal sentence, and allow the appeal against sentence.
Background
[4] The complainant was twelve or thirteen years old at the time of the incidents. At the time of all but the first incident, the appellant rented a basement apartment in the complainant’s family’s home. The instances of sexual touching escalated in severity and ranged from touching the complainant’s breasts, vagina and buttocks, to cunnilingus and anal penetration.
[5] The complainant testified that she told her mother about the first incident soon after it occurred, but did not tell her about the subsequent incidents. Her mother did not take the first incident seriously and the complainant thought her mother would not believe her if she reported any other incidents.
[6] After the incidents at issue, the appellant was rendered a quadriplegic as a result of a serious motor vehicle accident. He was a passenger in a car driven by the complainant’s mother. The appellant launched a civil suit against the mother for some six million dollars. The claim exceeds the mother’s insurance coverage, and the family’s home is at risk. The complainant made her allegations against the appellant eight days after his claim against her mother was served.
[7] The complainant and her mother were the only witnesses at trial. The complainant was fifteen years of age at the time of trial.
Conviction appeal
[8] The appellant advances the following grounds of appeal of his conviction:
- In his charge to the jury, the trial judge failed to:
(i) relate the evidence to the issues in the case;
(ii) instruct the jury on the assessment of the reliability of the witnesses;
(iii) make clear to the jury that the fact that the complainant was a young witness did not affect the standard for analyzing her evidence; and
(iv) specifically warn the jury of the dangers of convicting upon evidence given by parties with an animus against the appellant and instruct the jury on what evidence was capable of being confirmatory;
The trial judge erred in allowing the videos and transcripts of the complainant’s testimony to be sent to the jury room; and
The verdict is unreasonable.
Errors in the charge
[9] We are not persuaded that any of the four alleged deficiencies in the trial judge’s charge to the jury amounts to reversible error. While not determinative, we note that counsel for the appellant made no objection to the trial judge’s charge to the jury after the trial judge delivered it.
[10] We reject the appellant’s first assertion, that the trial judge did not sufficiently relate the evidence to the issues in the case. As the trial judge noted, the real issue was whether the alleged incidents took place. In his closing argument to the jury, counsel for the appellant made the defence’s theory clear: the complainant and her mother were motivated to lie in an attempt to de-rail the civil lawsuit. The issue for the jury was not complex. The trial was brief. The evidence took less than a day and a half. It was fresh in the minds of the jurors. In his closing argument to the jury, appellant’s counsel also reviewed what he argued were frailties in the complainant’s evidence that made her evidence not worthy of belief. While the trial judge might have related the evidence to the issues in a more detailed fashion, we are satisfied that in the circumstances, he sufficiently related the evidence to the issues before the jury.
[11] The appellant’s second assertion is that the trial judge did not adequately instruct the jury on the assessment of the complainant’s reliability. We disagree. While the credibility, and not the reliability, of the complainant was the main issue, the trial judge also directed the jury to consider the “witnesses’ character, their intellectual ability, their level of maturity”, to “keep in mind [the complainant’s] ability to observe and remember what happened” and to consider the “apparent memory capacity of the witness”.
[12] We also disagree with the appellant’s third assertion, namely that the trial judge erred in his instructions regarding the standard for analyzing the evidence of a young witness. The complainant was 12 years old when she provided one of her videotaped statements to the police. The trial judge instructed the jury that:
Young witnesses do not always have the same ability as adults to recall precise details or to describe events fully and accurately. For this reason, you may choose to regard some inconsistencies in their testimony as less significant than they would be if you had noticed them in the testimony of an adult. The important thing is to consider whether deficiencies of this sort mean that the young witness has misconceived the events she has described. In other words, you have to use your good common sense.
[13] The trial judge carefully charged the jury that the Crown must prove the appellant’s guilt beyond a reasonable doubt.
[14] In his charge to the jury, the trial judge highlighted the complainant’s testimony that she did not like the appellant and wished that he would be sent to jail. He also reproduced the summary of the defence’s position provided to him by defence counsel, which included the defence’s position that the complainant had a motive to lie. In the circumstances, this was sufficient.
[15] There is, in our view, no merit to the appellant’s fourth argument, namely that the trial judge erred in failing to provide guidance to the jury on what, in law, can amount to corroborative or confirmatory evidence. The complainant’s evidence was that she told her mother about the first incident after it happened. In his charge, the trial judge explained:
…our law does not require corroboration of any complaint of this nature. It is up to you, the jury, to decide whether or not the evidence is sufficient to prove beyond a reasonable doubt that the accused is guilty of an offence. It does not require anybody else to say yes.
In this case, the mother’s evidence perhaps depending on how you look at it, might provide some. She told us about the disclosure. The mother’s evidence it was a little confused on this, at least I found, she at first did not remember when the disclosure was made to her, and then seemed to remember that it was made the same night as they went to the play; at least that is my memory of it …
[16] Appellant’s counsel concedes that confirmatory evidence is not required in cases of this nature. The trial judge was not using corroboration in any technical sense. His review of the mother’s evidence was accurate and favoured the defence position. Use of the term “corroboration” should be avoided, but in this case it caused no prejudice to the appellant.
The video and transcripts
[17] Nor do we agree that the trial judge erred in permitting the jury to view the videotape and transcripts of the complainant’s police interview inside the jury room during its deliberations. The trial judge has the discretion to permit the jury to do so. An appellate court will interfere with the trial judge’s exercise of discretion to allow the videotaped statement with them during deliberations only where the appellant can demonstrate that his right to a fair trial was compromised as a result: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), para. 78. The appellant has not satisfied us that his right to a fair trial was compromised as a result of the trial judge permitting the jury to view the video and transcripts of the complainant’s statement to the police in the jury room.
Unreasonable Verdict
[18] Finally, we are not persuaded that the verdict was unreasonable. The complainant’s evidence made out all of the elements of the offences with which the appellant was charged. While there were frailties in that evidence, a properly instructed jury could convict on that evidence.
Sentence appeal
[19] The appellant argues that the sentence imposed on him is harsh and excessive having regard to his physical infirmity.
[20] The trial judge struggled to craft a fit sentence.
[21] The appellant was 41 years of age at the time of sentencing. He was a first offender and had led an exemplary life. The trial judge noted that the appellant is in severe pain, has a colostomy, receives therapy four days a week and requires the daily assistance of a nurse to perform basic bodily functions. He needs a long list of some medications, including opiates, which must be taken several times daily. He is at a high risk of developing complications. The trial judge concluded that a conditional sentence was not available, and, in the absence of information with respect to how the appellant might be treated while incarcerated, imposed a sentence of 30 months.
[22] The circumstances of this case are extraordinary. On these totally unique facts, incarceration is not necessary to meet the objectives of sentencing and, having regard to the extent of the appellant’s physical infirmity, the sentence imposed is demonstrably unfit. Accordingly, leave to appeal sentence is granted and we allow the sentence appeal and reduce the sentence to two years less a day, to be served in the community as a conditional sentence, on the terms, including house arrest, proposed by the Crown.
“Warren K. Winkler C.J.O.”
“M. Rosenberg J.A.”
“Alexandra Hoy J.A.”