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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. S.M.A., 2020 ONCA 823

DATE: 20201217

DOCKET: C67294

Watt, Tulloch and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.A.

Appellant

Leonard Max and Wayne Douglas Young, for the appellant

Jennifer Trehearne, for the respondent

Heard: September 17, 2020 by videoconference

On appeal from the convictions entered on March 28, 2019 and the sentence imposed on August 6, 2019 by Justice Julie Bourgeois of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of sexual assault, assault with a weapon, uttering a threat to cause death, and criminal harassment by engaging in threatening conduct against his now estranged spouse. He received a global custodial sentence of 42 months and various ancillary orders. The appellant appeals his convictions and seeks leave to appeal his sentence. He also moves for leave to introduce fresh evidence in support of his appeal.

Brief Factual Background

[2] The appellant committed these offences in the context of his deteriorating marriage to the complainant. The couple was married in 2004 and subsequently had three children. The trial judge found that the complainant told the appellant that she wanted a divorce and attempted to have him sign divorce documents that he threw in the garbage. The trial judge accepted the complainant’s evidence and found that the appellant physically and sexually assaulted her numerous times during their marriage.

[3] Further, on March 8, 2015, the appellant assaulted the complainant with a broomstick, pushed her on the floor, and kicked her. That same evening, the complainant made a 911 call to the police. While she did not disclose these acts to the police over the telephone, she indicated to the 911 operator that she wanted a divorce.

[4] The trial judge determined that, upon the discovery of compromising photos of the complainant with her cousin, the appellant compelled the complainant to leave the family home on December 23, 2016, threatening to kill her and distribute the photos of her to their families if she did not leave the house. The appellant admitted that he did subsequently distribute the photos to some members of their respective families and that, ultimately, violence towards the complainant and her cousin could result from this action. The trial judge found that the appellant also took steps to alienate their children from the complainant.

Conviction Appeal

[5] While the appellant raised numerous grounds for appeal in his written submissions, he significantly narrowed the issues during oral submissions.

[6] At trial, the appellant denied committing the offences and attested to a completely different version of events. On appeal, he submits that the trial judge erred in her assessment of the appellant’s evidence. According to the appellant, the trial judge failed to carry out the requisite analysis in accordance with the principles articulated in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Specifically, the appellant submits that the trial judge misapprehended evidence concerning the timing of the complainant’s divorce application that was commenced in June 2016. This misapprehension, according to the appellant, caused the trial judge to negatively assess and reject the appellant’s evidence that nothing had precipitated the complainant’s 911 call to the police on March 8, 2015. In support of the latter submission, the appellant relies on evidence from the Family Court proceedings commenced in June 2016 that he tenders as fresh evidence.

[7] We do not accept these submissions, nor do we admit the fresh evidence.

[8] First, it is clear from the trial judge’s reasons that she did not simply choose between the complainant’s and the appellant’s respective versions of events but considered the whole of the evidence. Moreover, the trial judge did not base her rejection of the appellant’s evidence simply on his denial that the complainant had told him prior to March 2015 that she wanted a divorce and that he thought she was joking when she called 911. The trial judge gave numerous reasons for finding that the appellant’s evidence was “unreasonable and illogical” and that his evidence, as well as the evidence of his sister-in-law and his eldest daughter, did not leave her with a reasonable doubt. The trial judge found that the complainant “testified in a genuinely sincere manner with attention to details and cautious to be clear on what she remembers and what was not so clear in her memory” and that “[s]he does not contradict herself and is unshaken on the core of her evidence.” We see no error in the trial judge’s analysis or conclusions.

[9] Second, the trial judge did not misapprehend the evidence concerning the timing of the divorce proceedings. The evidence elicited during the complainant’s cross-examination confirmed that she had issued a formal application for divorce against the appellant in June 2016, some 15 months after her 911 call to the police on March 8, 2015. However, she also testified that, prior to March 2015, she had obtained divorce papers from the court that her husband refused to sign and either threw away or hid from her. It was open to the trial judge to accept this evidence and find that, prior to March 2015, the complainant had spoken to the appellant about obtaining a divorce and attempted to have him sign documents before she commenced a formal application in June 2016. In any event, the trial judge recognized that, even if there were some confusion about when the complainant broached the subject of divorce with the appellant, there could be no issue that he knew on March 8, 2015 that she wanted a divorce and that she was not joking. The trial judge’s reasons reveal no inconsistency or misapprehension of the evidence.

Fresh Evidence

[10] With respect to the tendered fresh evidence, we are not persuaded that it meets the criteria for admission of Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. First, the referenced documents could have been put before the trial judge with due diligence, given that they were in the possession of the appellant as a party to the Family Court proceedings, and his counsel on this appeal represents the appellant in those proceedings. Further, the referenced contents could not reasonably have affected the outcome at trial. As we earlier observed, the information about the timing of the commencement of the divorce application was already part of the trial evidence. As a result, it is not necessary in the interests of justice to admit the evidence.

Sentence Appeal

[11] The appellant submits that the sentence is demonstrably unfit and that the trial judge erred in relying on parental alienation as an aggravating factor. The appellant indicates that the issue of parental alienation should have been left for determination in the divorce proceedings.

[12] We disagree and see no basis for appellate intervention.

[13] The sentence is clearly fit. It comes within the appropriate range for similar offences by similar first-time offenders. The general range for the offence of forced intercourse against a spouse, alone, is between 21 months and 4 years: R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87. In the case at bar, a global custodial sentence of 42 months is fit, as the appellant committed multiple, violent offences against the complainant.

[14] As the trial judge correctly held, the appellant’s serious offences against the complainant were committed in the context of an abusive domestic relationship, which is an aggravating factor under s. 718.2(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. In addition, the trial judge could properly take into account as aggravating factors on sentencing the egregious particulars of the offences that she was satisfied the Crown had proven beyond a reasonable doubt. These included the appellant’s emotional and physical mistreatment of the complainant, as well as the complainant’s expulsion from the home by the appellant and his efforts to alienate his children from their mother.

[15] That the issue of parental alienation also arises in the Family Court proceedings between the complainant and the appellant did not preclude the trial judge from relying on it as a relevant, aggravating factor on sentencing. The trial judge did not exceed her jurisdiction in her treatment of this factor. She expressly noted that the issue of custody was not before her, as the criminal trial is separate from the Family Court proceedings.

Disposition

[16] For these reasons, the appeal from convictions is dismissed. We allow leave to appeal sentence, but we dismiss the sentence appeal.

“David Watt J.A.”

“M. Tulloch J.A.”

“L.B. Roberts J.A.”