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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Stewart, 2013 ONCA 579

DATE: 20130926

DOCKET: C55686, C55956

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Blair Stewart Appellant

Counsel: Blair Stewart, in person for the conviction appeal Joseph Di Luca, for the appellant on the sentence appeal Michael Bernstein, for the respondent

Heard: September 11, 2013

On appeal from the conviction entered on May 2, 2012 and the sentence imposed on June 20, 2012 by Justice L.M. Baldwin of the Ontario Court of Justice, sitting without a jury.

By the Court:

[1] The appellant appeals from his conviction and sentence on charges of threatening death, assault, sexual assault and breach of probation. Baldwin J. sentenced the appellant to a total of 6 years imprisonment in addition to 15.5 months pre-sentence custody. At the conclusion of oral argument the court dismissed the conviction appeal but allowed the sentence appeal and reduced the effective global sentence to three years and 8.5 months, with reasons to follow.

[2] As to the conviction appeal, the case turned on the assessment of credibility. The appellant and the complainant had known each other for many years and had an intimate relationship at various times. On the date of the offences, however, the complainant had made it clear that she did not want the appellant at her home. The essential dispute was whether, after an initial dispute, the complainant consented to sexual activity with the appellant. The appellant argues that the trial judge did not properly analyze credibility because she made the assessment solely on the basis of the assessment of the character of the appellant and the complainant and failed to consider the evidence of additional witnesses, such as the parties’ son and his girlfriend.

[3] We are satisfied that the trial judge did not err in her assessment of credibility and provided adequate reasons for her findings. There was physical evidence in the form of injuries to the complainant that confirmed her testimony. The trial judge was entitled to consider the history of the relationship between the parties in making her assessment of credibility. That history was directly relevant since it explained the behaviour of both parties and informed the credibility assessment. This was not merely an exercise in reasoning from character. The trial judge made brief reference to the evidence of the other witnesses. In the circumstances that is all that was required, since there was little dispute that the central issue, the nature of the alleged sexual assault, depended almost entirely on the evidence of the appellant and the complainant. Accordingly, the appeal from conviction is dismissed.

[4] As to sentence, in our view, the trial judge made several errors in principle. She exceeded the sentence sought by the Crown by a substantial amount, over two years, without giving the parties an opportunity to make submissions as to why the range suggested by counsel was inappropriate and failed to provide reasons for such a significant departure from the suggested range. Further, the sentence was manifestly excessive.

[5] At trial, defence counsel sought a sentence of thirty months imprisonment less credit for pre-sentence custody of 15.5 months. Crown counsel sought a sentence of 5 years less credit for pre-sentence custody. Both counsel relied upon this court’s decision in R. v. B.R. (2006), 2006 CanLII 29082 (ON CA), 81 O.R. (3d) 641, where the court upheld a sentence of 30 months imprisonment for a sexual assault arising out of a domestic relationship. Crown counsel sought a higher sentence in the appellant’s case because of his record for offences of domestic violence involving this same complainant. Another helpful case in fixing the range for these types of offences is R. v. Smith (2011), 2011 ONCA 564, 274 C.C.C. (3d) 34 (Ont. C.A.), which suggests a range of 21 months to four years for cases of forced sexual intercourse with a former spouse.

[6] We agree with the submissions of Crown counsel at trial that a global sentence in the range of five years less credit for pre-sentence custody was appropriate. A sentence greater than those imposed in B.R. and Smith was required given the history of abuse in this relationship, even though the earlier offences were less serious and involved much shorter periods of imprisonment. On the other hand, there was also reason to give some emphasis to rehabilitation. After many years of drug and alcohol addiction, the appellant had discontinued the use of illicit drugs and had substantially reduced his consumption of alcohol. The appellant was a skilled mechanic and had developed a plan to remove himself from any contact with the complainant by obtaining employment in Fort McMurray.

[7] Finally, we agree with Mr. Di Luca that the trial judge’s offer to provide further written reasons should her decision be reviewed did not comply with her obligation to provide reasons for imposing a sentence substantially outside the range suggested by counsel. It would have been inappropriate to ask the trial judge for further reasons once her judgment was under appeal.

[8] Accordingly, leave to appeal sentence is granted, the appeal allowed and the sentence on count 4 is reduced to 2 years and 8.5 months imprisonment consecutive and the sentences on counts 5 and 6 are made concurrent to the other sentences imposed. The sentences imposed on the other counts will remain. In the result the appellant is serving a total sentence of 3 years and 8.5 months imprisonment.

[9] We wish to thank Mr. Di Luca, who was retained only on the sentence appeal, for his assistance with the conviction appeal.

Released: “AH” September 30, 2013

“A. Hoy A.C.J.O.”

“M. Rosenberg J.A.”

“R.J. Sharpe J.A.”