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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Skedden, 2013 ONCA 49

DATE: 20130129

DOCKET: C37957

Goudge, Rouleau JJ.A., and Ray J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl James Skedden

Appellant

Catriona Verner, for the appellant

Gregory J. Tweney and Michael Medeiros, for the respondent

Heard: November 27, 2012

On appeal from the conviction entered on August 10, 1999 and the sentence imposed on June 5, 2001 by Justice Joseph Scime of the Superior Court of Justice, sitting with a jury.

Goudge J.A. and Ray J. (ad hoc):

[1] In August of 1999, the appellant was tried for sexual assault before a judge and jury. He was convicted. The Crown then brought an application to have the appellant declared a dangerous offender and on June 5, 2001, after a lengthy hearing, the trial judge declared him to be a dangerous offender.

[2] The appellant appeals his conviction, and if leave is granted, his sentence. For the reasons that follow, we would dismiss both appeals.

[3] The appellant was charged with sexually assaulting the 16-year-old girl who was babysitting his girlfriend’s 10-year-old daughter Felicia.

[4] The complainant’s evidence was that she had slept on the bed in Felicia’s room while Felicia slept on the floor beside her. The appellant entered the bedroom shortly after 7:00 a.m. while Felicia was still asleep. The appellant pushed the complainant onto the bed, removed her night-shirt and had forced sexual intercourse with her. The complainant tried to push him off and told him he should not be doing this, but her efforts failed. Both Felicia and her mother testified that Felicia was a light sleeper, at least after 6:30 in the morning. Felicia did not wake up during the assault. The appellant’s semen was found on the complainant’s underwear and night-shirt.

[5] The appellant did not give evidence. He argued that his semen could be explained by consensual sexual activity, and that the frailties in the complainant’s evidence should have left the jury with a reasonable doubt regarding consent. He did not raise the issue of mistaken belief in consent.

[6] The appellant raises six arguments with respect to his appeal against conviction.

[7] First, he says that although the trial judge instructed the jury properly on the need to find beyond a reasonable doubt that there was an assault of a sexual nature for which there was no consent, he erred in failing to charge the jury that the Crown had to satisfy them beyond a reasonable doubt that the appellant knew that the complainant was not consenting, or was reckless as to whether she was consenting or not.

[8] We reject this argument. R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918 is clear authority contrary to the proposition that such an instruction is always required in a sexual assault case. Nor, in our view, was there any basis for requiring such an instruction on the facts of this particular case. There was no objection at trial to this aspect of the charge. The issue at trial was consent. It was not whether the appellant knew of, or was reckless about the complainant’s lack of consent. There was no evidence suggesting the appellant did not know or care about the lack of consent. Nor was there any evidence at all of his honest belief in consent. Even if the complainant’s evidence of her resistance and protestations were rejected, the evidence of Felicia and her mother suggested no more than the complainant’s passivity or lack or resistance which clearly could not constitute consent. Nor was there any other basis for the judge to have to charge the jury about whether the appellant knew or was reckless as to the complainant’s non-consent.

[9] The appellant’s second argument is that the trial judge invited the jury to speculate in two respects. First he says the trial judge suggested to the jury that the complainant may have feared that an outcry would provoke a violent response from the appellant, and therefore did not scream or cry out. Second, the trial judge suggested to the jury that it was open to them to find that the appellant appeared to be twice the appellant’s age and that this could be considered on the issue on the issue of consent.

[10] We do not agree with this argument. The trial judge repeatedly instructed the jury that they were the sole judges of the facts. Moreover, the complainant did give evidence that she was scared of the appellant. This was certainly something the jury could consider as a basis for her not screaming or crying out. In addition, the apparent ages of the appellant and the complainant were before the jury and any comparison and the relevance of it to their deliberations was something the jury could assess on a common sense basis.

[11] Third, the appellant argues that the trial judge erred in instructing the jury to disregard all questions not adopted witness. The appellant says that this amounts to an instruction to disregard the defence theory. Related to this, the appellant also argues that the trial judge erred in responding to the jury’s question regarding the complainant’s version of the order of events, by reading back only the complainant’s evidence-in-chief, not her cross-examination.

[12] We agree with neither of these points. The impugned instruction was merely a correct assertion that a question posed in the form of a suggestion does not become part of the evidence unless the witness adopts the suggestion. This instruction would not have been interpreted as a direction to disregard the defence theory. Indeed the charge explained the position of the defence without issue or complaint from counsel. Nor do we see any error in the trial judge’s response to the jury’s question. It clearly sought the complainant’s evidence of the sequence of events. Prior to responding, the trial judge and counsel agreed that there was nothing in the complainant’s cross-examination on the sequence of events and therefore no need to include it in the read-back. We agree.

[13] Fourth, the appellant argues that the trial judge erred in suggesting to the jury that there was an onus on the appellant to introduce evidence of the complainant’s motive to fabricate before they could acquit.

[14] We disagree. At no point does the charge suggest an obligation on the appellant to call evidence of the complainant’s motive to fabricate. Rather, the trial judge clearly placed the onus on the prosecution throughout and made clear to the jury that the appellant bore no burden of proof whatsoever.

[15] Fifth, the appellant says that the trial judge erred in telling the jury that they could use the complainant’s prior consistent statements to assess her credibility.

[16] Taking it as a whole, we do not read the charge that way. The trial judge clearly explained that the prior statements cannot be used for the truth of their contents. He said that they were receivable as part of the narrative and “merely to show consistency”. While the last phrase would have been better left unsaid, we view it as benign in this context, particularly where the complainant’s prior statements contained no detail, in contrast to her detailed trial evidence.

[17] Lastly, the appellant submits that the trial judge erred in instructing the jury that, if after considering the complainant’s evidence alone, they believed her, they could convict rather than considering that evidence in the context of all of the evidence.

[18] We cannot accept this reading of the charge. The trial judge repeatedly told the jury to consider all the evidence in determining whether the prosecution had proven the allegations beyond a reasonable doubt. The jury would not have thought that they could assess the complainant’s evidence in isolation.

[19] In summary, we would reject the various arguments advanced by the appellant. The conviction appeal must be dismissed.

Sentence

[20] The dangerous offender hearing proceeded on the assumption that the long term offender should only be considered if the Crown failed to establish the appellant was a dangerous offender. This is now known as the ‘Johnson’ error, following the case of that name decided two years later[^1]. The court ruled that this approach is an error of law, and that judges must consider the applicability of the long term offender provisions before imposing a dangerous offender designation. The court also ruled that while, it would only be in the rarest of circumstances that an appeal would be dismissed because the error had created no substantial wrong or miscarriage of justice, the threshold would be crossed where it can be shown that “there is no reasonable possibility that the verdict would have been any different had the error of law not been made”. [^2]

[21] In this case, we are satisfied that, an indeterminate sentence was the only appropriate sentence. The evidence before the trial judge made it clear that there was no reasonable possibility that the trial judge could have made a long term offender order had the procedure outlined in Johnson been followed. The fresh evidence tendered on appeal simply reinforces that conclusion.

[22] The dangerous offender hearing was lengthy. It lasted 47 days over five months, during which 50 witnesses testified, including the appellant. The evidence fell roughly into two categories: the factual framework for the appellant’s very lengthy criminal record; and medical and other evidence concerning the appellant’s treatment history, psychiatric profile and prognosis. The trial judge gave thorough reasons of more than 70 pages.

[23] The medical evidence included six experts (three psychologists and three psychiatrists) for the crown and one for the defence (a psychologist). The Crown’s experts were unanimous based on the appellant’s treatment history and documented recidivism that he had a high risk to reoffend with very little chance of control. The point of departure amongst the experts was that Dr. Langevin for the defence was of the opinion that the appellant’s risk could be managed by a particular one-on-one therapy, whereas Dr. Dickey for the Crown both disagreed with Dr. Langevin’s diagnosis and with his suggested therapy, which incidentally was not available in the federal correctional system. The trial judge rejected Dr. Langevin’s opinion as an effective means of managing the appellant’s risk to reoffend, and accepted Dr. Dickey’s opinion that the appellant was heterosexual with the classic clinical history of a sadist and not an ego dystonic homosexual. This finding was open to the trial judge and is entitled to deference. It removes any possibility of the ability to manage the risk posed by the appellant in the community.

[24] The trial judge was alive to the different tests for long term offender and dangerous offender, and while he did not proceed first with consideration of the long term offender designation, it is implicit in his thoughtful and detailed review of the evidence that he nevertheless conducted a thorough enquiry into the criteria for the long term offender designation and concluded that the dangerous offender finding was not only reasonable but inevitable.

[25] There was nothing in the fresh evidence before us to suggest any significant change since the hearing in 1998.

[26] Leave to appeal sentence is granted but the appeal against sentence is dismissed.

Released: January 29, 2013 (“S.T.G.”)

“S.T. Goudge J.A.”

“T. Ray J. (ad hoc)”

“I agree Paul Rouleau J.A.”

[^1]: R v. Johnson, (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.)

[^2]: Supra, page 121. This was followed more recently by this court in R v Sipos, 2012 ONCA 751