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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-08-22

Dockets: C63195 & C63327

Panel: Doherty, LaForme and Rouleau JJ.A.

C63195

Between

Her Majesty the Queen Appellant

and

J.N.D. Respondent

C63327

Between

Her Majesty the Queen Respondent

and

J.N.D. Appellant

Counsel

Katherine Beaudoin, for Her Majesty the Queen

Michael W. Lacy and Bryan Badali, for J.N.D.

Hearing and Appeal Information

Heard: August 16, 2017

On appeal from: The conviction entered on January 28, 2016 and the sentence imposed on December 14, 2016 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Conviction Appeal

[1] J.N.D. was convicted of historic sexual offences against his cousin when she was a young girl. He was sentenced to two years less a day in jail and three years' probation.

[2] J.N.D. appeals his conviction arguing that the trial judge engaged in an unbalanced approach to the evidence resulting in a reversal of the burden of proof and a failure to give effect to the presumption of innocence.

[3] The Crown seeks leave to appeal J.N.D.'s sentence and argues that the trial judge improperly applied R. v. Gladue, [1999] 1 S.C.R. 688 principles and underemphasized deterrence and denunciation, leading to a manifestly unfit sentence.

[4] This was a straightforward case where the trial judge had to consider the testimony of the complainant, other witnesses who confirmed material aspects of the complainant's evidence, and the denials given through the testimony of J.N.D. She believed the complainant's accounts of the offences and provided clear and comprehensive reasons for doing so. She also provided detailed reasons for disbelieving critical portions of J.N.D.'s evidence. Her reasons in all respects were fair and addressed the correct issues.

[5] We disagree with J.N.D.'s assertions that the trial judge's approach to the evidence was unbalanced, or that she failed to give effect to the presumption of innocence. She clearly appreciated, articulated and applied the burden of proof to the totality of the evidence. Her conclusion that certain inconsistencies in the testimony of Crown witnesses did not leave her with a reasonable doubt, while aspects of J.N.D.'s testimony led her to reject his evidence, does not demonstrate any error in her analysis of the totality of the evidence. It does not, as argued, demonstrate that she applied a different level of scrutiny to the Crown and defence evidence.

[6] The conviction appeal is dismissed.

Sentence Appeal

[7] The more difficult question for this court is the Crown's appeal against sentence. At the outset, the Crown must overcome the high hurdle required for this court to intervene. That is, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, this court can only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

[8] The trial judge was aware that she was sentencing J.N.D., an Aboriginal man from a reserve in the region, for sexual assault and sexual touching and observed: "These offences are serious and call for a serious response". She referred to and considered both aggravating and mitigating factors applicable to J.N.D. and these offences. Importantly, the trial judge had the advantage of both a pre-sentence report and a Gladue report[1] and noted correctly that the essence of the Supreme Court's decision in Gladue is remedial in nature.

[9] The trial judge then reviewed the Gladue principles extensively in her reasons and applied them to J.N.D. It is obvious to us that the trial judge was making every effort to apply the principles mandated in Gladue in the face of the options available to her. Her decision, while understandably at odds with what the Crown believed was appropriate in the circumstances, does not reveal any reversible error and is entitled to deference.

[10] The offences in this case occurred in the north, which has a strong connection to Aboriginal communities. The trial judge, most importantly, is experienced in presiding over criminal trials in that region including those involving an accused with a connection to the Aboriginal communities. She was uniquely situated to determine the just and appropriate sentence balance of the societal interests and the moral blameworthiness of J.N.D. in all the circumstances of these offences. At all times the trial judge "took into account the needs and current conditions of and in the community": see, R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91.

[11] The type of assessment undertaken by the trial judge in the particular circumstances of this case is precisely that which attracts judicial deference. Leave to appeal sentence is granted, the appeal is dismissed.

Signatures

"Doherty J.A."

"H.S. LaForme J.A."

"Paul Rouleau J.A."

Footnote

[1] A Gladue report is a type of pre-sentencing report that a court can request when considering sentencing an offender of Aboriginal/Indigenous background under s. 718.2(e) of the Criminal Code.