



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    the complainant or a witness shall not be published in any document or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




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Skedden, 2013
    ONCA 49

DATE: 20130129

DOCKET: C37957

Goudge, Rouleau JJ.A., and Ray J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl James Skedden

Appellant

Catriona Verner, for the appellant

Gregory J. Tweney and Michael Medeiros, for the
    respondent

Heard: November 27, 2012

On appeal from the conviction entered on August 10, 1999
    and the sentence imposed on June 5, 2001 by Justice Joseph Scime of the Superior
    Court of Justice, sitting with a jury.

Goudge J.A. and Ray J.
(
ad hoc
):

[1]

In August of 1999, the appellant was tried for sexual assault before a
    judge and jury. He was convicted. The Crown then brought an application to have
    the appellant declared a dangerous offender and on June 5, 2001, after a
    lengthy hearing, the trial judge declared him to be a dangerous offender.

[2]

The appellant appeals his conviction, and if leave is granted, his
    sentence. For the reasons that follow, we would dismiss both appeals.

[3]

The appellant was charged with sexually assaulting the 16-year-old girl
    who was babysitting his girlfriends 10-year-old daughter Felicia.

[4]

The complainants evidence was that she had slept on the bed in
    Felicias room while Felicia slept on the floor beside her. The appellant
    entered the bedroom shortly after 7:00 a.m. while Felicia was still asleep. The
    appellant pushed the complainant onto the bed, removed her night-shirt and had forced
    sexual intercourse with her. The complainant tried to push him off and told him
    he should not be doing this, but her efforts failed. Both Felicia and her
    mother testified that Felicia was a light sleeper, at least after 6:30 in the
    morning. Felicia did not wake up during the assault. The appellants semen was
    found on the complainants underwear and night-shirt.

[5]

The appellant did not give evidence. He argued that his semen could be
    explained by consensual sexual activity, and that the frailties in the
    complainants evidence should have left the jury with a reasonable doubt
    regarding consent. He did not raise the issue of mistaken belief in consent.

[6]

The appellant raises six arguments with respect to his appeal against
    conviction.

[7]

First, he says that although the trial judge instructed the jury
    properly on the need to find beyond a reasonable doubt that there was an
    assault of a sexual nature for which there was no consent, he erred in failing
    to charge the jury that the Crown had to satisfy them beyond a reasonable doubt
    that the appellant knew that the complainant was not consenting, or was
    reckless as to whether she was consenting or not.

[8]

We reject this argument.
R. v. Robertson
, [1987] 1 S.C.R. 918
    is clear authority contrary to the proposition that such an instruction is
    always required in a sexual assault case. Nor, in our view, was there any basis
    for requiring such an instruction on the facts of this particular case. There
    was no objection at trial to this aspect of the charge. The issue at trial was
    consent. It was not whether the appellant knew of, or was reckless about the
    complainants lack of consent. There was no evidence suggesting the appellant
    did not know or care about the lack of consent. Nor was there any evidence at
    all of his honest belief in consent. Even if the complainants evidence of her resistance
    and protestations were rejected, the evidence of Felicia and her mother suggested
    no more than the complainants passivity or lack or resistance which clearly
    could not constitute consent. Nor was there any other basis for the judge to
    have to charge the jury about whether the appellant knew or was reckless as to
    the complainants non-consent.

[9]

The appellants second argument is that the trial judge invited the jury
    to speculate in two respects. First he says the trial judge suggested to the
    jury that the complainant may have feared that an outcry would provoke a
    violent response from the appellant, and therefore did not scream or cry out.
    Second, the trial judge suggested to the jury that it was open to them to find
    that the appellant appeared to be twice the appellants age and that this could
    be considered on the issue on the issue of consent.

[10]

We do not
    agree with this argument. The trial judge repeatedly instructed the jury that
    they were the sole judges of the facts. Moreover, the complainant did give
    evidence that she was scared of the appellant. This was certainly something the
    jury could consider as a basis for her not screaming or crying out. In
    addition, the apparent ages of the appellant and the complainant were before
    the jury and any comparison and the relevance of it to their deliberations was
    something the jury could assess on a common sense basis.

[11]

Third, the
    appellant argues that the trial judge erred in instructing the jury to
    disregard all questions not adopted witness. The appellant says that this
    amounts to an instruction to disregard the defence theory. Related to this, the
    appellant also argues that the trial judge erred in responding to the jurys
    question regarding the complainants version of the order of events, by reading
    back only the complainants evidence-in-chief, not her cross-examination.

[12]

We agree
    with neither of these points. The impugned instruction was merely a correct
    assertion that a question posed in the form of a suggestion does not become
    part of the evidence unless the witness adopts the suggestion. This instruction
    would not have been interpreted as a direction to disregard the defence theory.
    Indeed the charge explained the position of the defence without issue or
    complaint from counsel. Nor do we see any error in the trial judges response
    to the jurys question. It clearly sought the complainants evidence of the
    sequence of events. Prior to responding, the trial judge and counsel agreed
    that there was nothing in the complainants cross-examination on the sequence
    of events and therefore no need to include it in the read-back. We agree.

[13]

Fourth,
    the appellant argues that the trial judge erred in suggesting to the jury that
    there was an onus on the appellant to introduce evidence of the complainants
    motive to fabricate before they could acquit.

[14]

We
    disagree. At no point does the charge suggest an obligation on the appellant to
    call evidence of the complainants motive to fabricate. Rather, the trial judge
    clearly placed the onus on the prosecution throughout and made clear to the
    jury that the appellant bore no burden of proof whatsoever.

[15]

Fifth, the
    appellant says that the trial judge erred in telling the jury that they could
    use the complainants prior consistent statements to assess her credibility.

[16]

Taking it
    as a whole, we do not read the charge that way. The trial judge clearly
    explained that the prior statements cannot be used for the truth of their
    contents. He said that they were receivable as part of the narrative and
    merely to show consistency. While the last phrase would have been better left
    unsaid, we view it as benign in this context, particularly where the
    complainants prior statements contained no detail, in contrast to her detailed
    trial evidence.

[17]

Lastly,
    the appellant submits that the trial judge erred in instructing the jury that,
    if after considering the complainants evidence alone, they believed her, they
    could convict rather than considering that evidence in the context of all of
    the evidence.

[18]

We cannot
    accept this reading of the charge. The trial judge repeatedly told the jury to
    consider all the evidence in determining whether the prosecution had proven the
    allegations beyond a reasonable doubt. The jury would not have thought that
    they could assess the complainants evidence in isolation.

[19]

In
    summary, we would reject the various arguments advanced by the appellant. The
    conviction appeal must be dismissed.

Sentence

[20]

The
    dangerous offender hearing proceeded on the assumption that the long term
    offender should only be considered if the Crown failed to establish the
    appellant was a dangerous offender. This is now known as the Johnson error,
    following the case of that name decided two years later
[1]
.
    The court ruled that this approach is an error of law, and that judges must
    consider the applicability of the long term offender provisions before imposing
    a dangerous offender designation. The court also ruled that while, it would
    only be in the rarest of circumstances that an appeal would be dismissed
    because the error had created no substantial wrong or miscarriage of justice,
    the threshold would be crossed where it can be shown that there is no
    reasonable possibility that the verdict would have been any different had the
    error of law not been made.
[2]


[21]

In this
    case, we are satisfied that, an indeterminate sentence was the only appropriate
    sentence. The evidence before the trial judge made it clear that there was no
    reasonable possibility that the trial judge could have made a long term offender
    order had the procedure outlined in
Johnson
been followed. The fresh
    evidence tendered on appeal simply reinforces that conclusion.

[22]

The
    dangerous offender hearing was lengthy. It lasted 47 days over five months,
    during which 50 witnesses testified, including the appellant. The evidence fell
    roughly into two categories: the factual framework for the appellants very
    lengthy criminal record; and medical and other evidence concerning the
    appellants treatment history, psychiatric profile and prognosis. The trial
    judge gave thorough reasons of more than 70 pages.

[23]

The medical
    evidence included six experts (three psychologists and three psychiatrists) for
    the crown and one for the defence (a psychologist). The Crowns experts were
    unanimous based on the appellants treatment history and documented recidivism
    that he had a high risk to reoffend with very little chance of control. The
    point of departure amongst the experts was that Dr. Langevin for the defence
    was of the opinion that the appellants risk could be managed by a particular
    one-on-one therapy, whereas Dr. Dickey for the Crown both disagreed with Dr.
    Langevins diagnosis and with his suggested therapy, which incidentally was not
    available in the federal correctional system. The trial judge rejected Dr.
    Langevins opinion as an effective means of managing the appellants risk to
    reoffend, and accepted Dr. Dickeys opinion that the appellant was heterosexual
    with the classic clinical history of a sadist and not an ego dystonic
    homosexual.  This finding was open to the trial judge and is entitled to
    deference. It removes any possibility of the ability to manage the risk posed
    by the appellant in the community.

[24]

The trial
    judge was alive to the different tests for long term offender and dangerous
    offender, and while he did not proceed first with consideration of the long
    term offender designation, it is implicit in his thoughtful and detailed review
    of the evidence that he nevertheless conducted a thorough enquiry into the
    criteria for the long term offender designation and concluded that the
    dangerous offender finding was not only reasonable but inevitable.

[25]

There was
    nothing in the fresh evidence before us to suggest any significant change since
    the hearing in 1998.

[26]

Leave to
    appeal sentence is granted but the appeal against sentence is dismissed.

Released: January 29, 2013 (S.T.G.)

S.T. Goudge J.A.

T. Ray J. (
ad hoc
)

I agree Paul Rouleau J.A.





[1]

R v. Johnson
, (2003), 177 C.C.C. (3d) 97 (S.C.C.)



[2]
Supra, page 121.This was followed more recently by this court in
R v Sipos
,
    2012 ONCA 751


