



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    identify the complainant or a witness shall not be published in any document or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.






CITATION:
R. v. Savage, 2011
          ONCA 107





DATE:
          20110208



DOCKET: C49883



COURT OF APPEAL FOR ONTARIO



Doherty, Laskin and Gillese JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



William Savage



Appellant



Joseph R. Jakabfy, for the appellant



Michelle Campbell, for the respondent



Heard and released orally:
January 28, 2011



On appeal from the conviction entered on November 13, 2007 and
          the sentence imposed on September 24, 2008, by Justice John D. Keast of the
          Ontario Court of Justice.



ENDORSEMENT



[1]

The appellant was convicted of sexual interference of a
    nine-year old developmentally delayed girl.  He was sentenced to 18 months imprisonment followed by three years
    probation.  He appeals from conviction
    and seeks leave to appeal sentence.

[2]

On the conviction appeal, the appellant argues that the
    verdict is unreasonable.  He also seeks
    to introduce fresh evidence by alleging ineffective assistance of counsel at
    trial.  He says his trial counsel was
    inadequately prepared for trial and inadequately represented him during the two
    day trial.

[3]

He appeals his sentence on the ground that it is
    manifestly unfit.

[4]

The court found it unnecessary to call on the Crown in
    this appeal.

THE CONVICTION APPEAL

[5]

At the time of the alleged incident, the complainant
    was nine years old.  She functions at a
    cognitive level some years younger than her actual age.  She and her father and grandmother lived in
    the appellants house.  The appellant was
    the grandmothers boyfriend. He was a truck driver and away from home a
    significant amount of the time. However, the appellant would occasionally look
    after the complainant when her father and grandmother went out to play bingo on
    Friday evenings.  The incident allegedly occurred
    on one such occasion.

[6]

The complainant was sitting on a couch watching
    television.  The appellant sat next to
    her.  He had been drinking.  He touched her hips and then moved his hands
    towards her breasts.  She flicked his
    hands off and told him not to touch her.  She then got up and went to the computer to check her emails.  He came up behind her, put his hands on her
    shoulders and again moved them towards her breasts.  She again flicked his hands off of her and
    told him not to touch her.  Some six
    years after the incident, the complainant disclosed the incident.

[7]

The trial lasted a single day.  Three witnesses, one of whom was the
    complainant, testified.  The appellant
    did not.  The sole issue was credibility.

[8]

The trial judge was alive to any inconsistencies and
    discrepancies in the complainants testimony.  To the extent there was conflicting evidence from the appellants
    grandmother on secondary matters such as the location of the computer and the
    ability to access the internet, the trial judge considered the evidence and
    preferred that of the complainant, whom he found to be credible and
    reliable.

[9]

We see no merit in the allegation that the verdict was
    unreasonable. The inconsistencies that the appellant raises before this court
    are minor matters. To the extent that the appellants submissions flow from the
    suggestion that the complainants testimony ought not to have been accepted
    because of her diminished mental capacity and her delay in reporting, we reject
    this submission.  The trial judge gave
    cogent reasons for finding her evidence credible and reliable.  He was entitled to accept that evidence and
    convict on it.  His reasons demonstrate
    that he considered each and every argument advanced by the defence at trial and
    that he carefully analysed those arguments.  He gave full explanations for why he rejected them.

THE FRESH EVIDENCE APPLICATION

[10]

We refuse to admit the fresh evidence because, in our
    view, the appellant has not made out his claim of ineffective assistance of
    counsel.

[11]

Having considered the fresh evidence, we find that the
    appellants trial counsel offers a far more credible and reliable history of
    his interaction with the appellant and that there were good tactical reasons
    for the decisions that he made during the course of the trial.  We also note that the appellant continued to
    retain his trial counsel on a different sexual interference charge after the
    trial in question.  In any event, after
    considering the fresh evidence, we are of the view that there was no
    incompetence on the part of trial counsel and there was no miscarriage of
    justice.

THE SENTENCE APPEAL

[12]

The appellant submits that the sentence fails to
    reflect the nature of the sexual touching, which was fleeting, isolated and did
    not escalate in seriousness.  Accordingly, he suggests, the sentence was unfit.

[13]

The Crown acknowledges that the acts in question might
    not normally justify an 18 month sentence of incarceration but says that the
    sentence in this case was fit.

[14]

We accept the Crowns submission on this matter.  There is no basis on which to interfere with
    the sentence imposed.

[15]

The trial judge gave detailed, thoughtful reasons for
    sentence, which properly took into account the aggravating factors of this
    offence, the appellants long standing predatory history of abusing children to
    whom he stood in a position of trust, and the trial judges factual finding
    that this appellant is at a high risk to re-offend.  The appellant was in a position of trust over
    his victim, a young and particularly vulnerable child because of her special
    circumstances.  The psychological impact
    on her has been considerable.

[16]

In its factum, the Crown had indicated that it would
    ask this court to allow the sentence appeal only to the extent of adding the
    following condition to the 3 year probationary term:

Not to be in the presence of anyone under the age
    of 16 unless   continuously in the
    company of another supervising adult other than Y.L.

[17]

The Crown advised the court that she had spoken with
    counsel for the appellant before the oral hearing of the appeal and that he had
    stated that he did not object to the imposition of that additional condition.  The court confirmed with counsel for the
    appellant that he had no objection to the addition of this condition.

[18]

We are satisfied that imposition of this additional
    probationary condition is warranted.

DISPOSITION

[19]

Accordingly, we dismiss the conviction appeal,
    grant leave to appeal sentence and allow the sentence appeal only to the extent
    of adding the probationary condition in the terms requested by the Crown, as
    set out above.

Doherty J.A.

J. I. Laskin J.A.

E. E. Gillese J.A.


