Court of Appeal for Ontario

CITATION: R. v. Desmanche, 2016 ONCA 17

DATE: 20160111

DOCKET: C59164

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rourke Thomas Desmanche

Appellant

Pamela Munn, for the appellant

Joanne Stuart, for the respondent

Heard and released orally: January 5, 2016

On appeal from the convictions entered on February 6, 2013 and the sentences imposed on January 9, 2014 by Justice Helen A. Rady of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of manslaughter in respect of the death of his infant son, as well as one count of assault for an earlier incident involving the child. He was sentenced to 10 years in jail on the manslaughter conviction, plus one year in jail, concurrent, on the assault conviction, after credit on a 1:1 basis for his pre-sentence custody. He appeals from his convictions and sentences.

A. Conviction Appeal

[2] The appellant appeals from his convictions on one main ground. He submits that the trial judge misapprehended the trial testimony of several of the Crown’s civilian witnesses and that of one of the medical experts called by the Crown at trial.

[3] We disagree.

[4] We see no material error in the trial judge’s appreciation of the evidence of the relevant civilian witnesses. It was open to the trial judge to conclude, as she did, that these witnesses, who were friends and neighbours of the appellant, testified reluctantly and that they were hesitant to say anything at trial that was adverse to the appellant’s interests. The trial judge’s observations in this regard formed a proper part of her assessment of the witness’ credibility, a matter squarely within the trial judge’s domain. Although, as the Crown concedes, the trial judge misquoted the evidence of one of these witnesses in one respect, this error was not material to the trial judge’s reasoning process. That the relevant witness was a friend of and supportive of the appellant was borne out by either version of the statement at issue. In these circumstances, the error in question did not occasion any miscarriage of justice.

[5] We reach a similar conclusion concerning the trial judge’s treatment of the expert’s evidence. As the Crown acknowledges, the expert’s report misstated the date on which the fatal injury to the appellant’s child occurred. This misstatement, which the appellant concedes may have been merely a typographical error, was not addressed by the trial judge. However, the misstatement did not bear on the core of the expert’s testimony, which concerned the timing of the fatal injury within a 30-minute period, established by the timing of the baby’s crying as overheard by the appellant’s neighbours and the timing of the arrival on the scene of medical personnel. The expert’s evidence in this regard was supported by the testimony of another properly qualified medical expert at trial. The misstatement in question, therefore, was inconsequential and could not have affected the outcome at trial. We note, in this regard, that the evidence implicating the appellant in the assault and death of his son, taken as a whole, was overwhelming.

[6] For these reasons, the conviction appeal is dismissed.

B. Sentence Appeal

[7] The appellant also seeks leave to appeal sentence. As advanced during oral argument, the only issue is whether the trial judge erred by failing to accord the appellant enhanced credit for pre-sentence custody. In light of the fresh evidence filed on appeal, the Crown acknowledges that enhanced credit was available in the circumstances.

[8] The trial judge did not have the benefit of the Supreme Court’s decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 or this court’s decision in R. v. Slack, 2015 ONCA 94. In light of those decisions, it is our view that credit should have been afforded to the appellant for his pre-sentence custody at the rate of 1.5:1. We see nothing in the Supreme Court’s recent decision in R. v. Lacasse, 2015 SCC 64 that dictates a different conclusion.

[9] Accordingly, leave to appeal sentence is granted, the sentence appeal is allowed and the appellant is granted credit for his 1,156 days of pre-sentence custody at the rate of 1.5:1. This results in a total credit for pre-sentence custody of 1,734 days or 4.75 years, yielding a residual sentence of 5.25 years’ imprisonment. In all other respects, the sentences imposed remain unchanged.

“E.A. Cronk J.A.”

“M. Tulloch J.A.”

“K. van Rensburg J.A.”