Court of Appeal for Ontario

CITATION: R. v. Kaziuk, 2013 ONCA 217

DATE: 20130404

DOCKET: C55782

BEFORE: Doherty, Rouleau and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen Respondent

and

Roman Kaziuk Appellant

COUNSEL: Lindsay E. Trevelyan, for the appellant Michael Perlin, for the respondent

HEARD: April 2, 2013

On appeal from the conviction entered by Justice Lesley M. Baldwin of the Ontario Court of Justice, dated June 23, 2011, and the sentence imposed on January 24, 2012.

APPEAL BOOK ENDORSEMENT

[1] We are satisfied that the conviction appeal must be dismissed. Although the procedure followed by the parties was in some ways unclear, the parties were in agreement that the victim, an 88 year old lady, would only testify once. When on a later date, the trial judge ruled the victim’s out-of-court statement admissible, defence counsel sought “permission” to further cross-examine the victim on “why her prior statement is different from her current statement [testimony]”.

[2] Assuming the trial judge should have allowed the further cross-examination, we see no prejudice in her failure to do so. The only topic on which the defence sought further cross-examination had been explored, to the appellant’s considerable advantage, with the victim in the earlier cross-examination. Especially in light of the victim’s advanced age and her assorted medical problems, there is no likelihood that the cross-examination would have advanced the defence position.

[3] With respect to the sentence, we are satisfied that the appeal must succeed. There was no basis upon which the trial judge could find that the appellant had attempted to obstruct justice by convincing his mother to change her evidence. The trial judge erred in taking that “offence” into account on sentence.

[4] We also think the total sentence imposed was excessive having regard to sentences imposed in similar cases, and the fact that the appellant had some 39 months left to serve on a prior offence. This was a case, however, that clearly called for an exemplary sentence. We agree with the trial judge’s observations about the offender.

[5] We would reduce the sentence to 8 years to be served consecutively to the sentence being served at the time of sentence.