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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

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. Finney, 2014 ONCA 866

Date: 2014-12-03

Docket: C55780

Before: Doherty, Feldman and Epstein JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

Daniel Finney (Appellant)

Counsel:

Margaret Bojanowska, for the appellant

Joanne Stuart, for the respondent

Heard and released orally: November 24, 2014

On appeal from the conviction entered on March 9, 2012 and the sentence imposed on June 29, 2012 by Justice O’Connell of the Superior Court of Justice.

Endorsement

The Conviction Appeal

[1] There are two grounds raised on the conviction appeal.

(1) The alleged interventions by the trial judge

[2] The cross-examination of the complainant was lengthy (some 500 pages), at times repetitive and often difficult to follow. The trial judge intervened many times during the cross-examination to question the complainant or clarify answers she had given. Many of the trial judge’s interventions were unnecessary and prolonged what was already a lengthy cross-examination. Many of the interventions were, however, appropriate. They were responsive to objections raised by the Crown, or they were a proper request for clarification of either the questions being asked or the answers being given.

[3] We do not accept the submission that the interventions of the trial judge in any way prevented counsel from cross-examining the complainant as he saw fit. In our view, the record simply belies any suggestion that any avenue of possible cross-examination was curtailed by the trial judge’s interruptions. We also do not agree that his interruptions, considered as a whole, show any bias in favour of the Crown or raise any reasonable apprehension of bias.

[4] Finally, we do not accept, from our reading of the transcript, that the interruptions reveal sarcasm or a level of criticism of counsel that is inconsistent with the conduct of a fair trial. There was perhaps some indication of impatience near the end of the cross-examination. Some degree of impatience by the later stages of the lengthy cross-examination was understandable.

(2) The defence of honest belief in consent

[5] The defence at trial was that the complainant had consented to the sexual activity in issue. Alternatively, the defence argued that the appellant honestly believed that the complainant had consented.

[6] On the findings of fact made by the trial judge in the course of his extensive reasons, there could be no basis for any claim of an honest belief in consent. His factual findings and his credibility findings effectively foreclosed that avenue. The trial judge’s reference to there being “no air of reality” to the defence of honest belief was simply reflective of his findings of fact. On those findings, there was indeed no air of reality to the claim of an honest belief in consent.

[7] The conviction appeal is dismissed.

The Sentence Appeal

[8] The appellant received a total of six years in the penitentiary. The trial judge imposed a five-year sentence on the sexual assault and a sentence of one year consecutive on the choking count. He then gave the appellant credit for pretrial custody of four months. The trial judge gave that credit on the basis of a 1:1 calculation.

[9] Crown counsel agrees, correctly in our view, that in light of R. v. Summers, released after the trial judge’s reasons, the trial judge should have given 1.5:1 credit, meaning that the appellant should have received a six-month credit for pretrial custody rather than four months. We will make that adjustment at the end of our treatment of this ground of appeal.

[10] This was a very serious crime worthy of a lengthy penitentiary term. At the same time, the appellant is a virtual first offender with positive rehabilitative prospects. The trial judge was faced with a very difficult sentencing problem. In his reasons, the trial judge imposed consecutive sentences on the sexual assault charge and on the choking charge. He offered no explanation for imposing consecutive sentences. The choking offence was, in our view, part and parcel of the sexual assault. It was but one of several serious acts of violence perpetrated against the victim by the appellant. In our view, on a proper application of sentencing principles, however, a consecutive sentence was not warranted. We would make the sentence on the sexual assault charge concurrent to the sentence on the choking charge, resulting in a sentence totalling five years.

[11] Five years is a fit sentence given the seriousness of the crime and taking into account the positive features of the appellant’s background and his rehabilitative potential.

[12] The appellant gets six months credit for his presentence custody, resulting in a sentence of four and one half years. We would impose that sentence on the sexual assault charge and impose a one-year concurrent sentence on the choking charge.

[13] The sentence appeal is allowed and the sentence varied as set out above.

“Doherty J.A.”

“K. Feldman J.A.”

“Gloria Epstein J.A.”