



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    that could identify the complainant or a witness shall not be published in any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. C.D., 2012
    ONCA 696

DATE: 20121016

DOCKET: C52677

Winkler C.J.O., Rosenberg and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.D.

Appellant

Paul Calarco, for the appellant

Grace Choi, for the respondent

Heard: October 9, 2012

On appeal from the conviction entered on June 4, 2010 and
    the sentence imposed on September 20, 2010 by Justice Thomas M. Dunn of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant is now a quadriplegic. Following a very short trial by
    jury, he was convicted of five counts of sexual assault and sentenced to 30 months
    in the penitentiary.

[2]

The appellant appeals both his conviction and the sentence imposed.

[3]

For the reasons that follow, we dismiss the appeal against conviction, grant
    leave to appeal sentence, and allow the appeal against sentence.

Background

[4]

The complainant was twelve or thirteen years old at the time of the
    incidents. At the time of all but the first incident, the appellant rented a
    basement apartment in the complainants familys home. The instances of sexual
    touching escalated in severity and ranged from touching the complainants
    breasts, vagina and buttocks, to cunnilingus and anal penetration.

[5]

The complainant testified that she told her mother about the first
    incident soon after it occurred, but did not tell her about the subsequent
    incidents. Her mother did not take the first incident seriously and the
    complainant thought her mother would not believe her if she reported any other
    incidents.

[6]

After the incidents at issue, the appellant was rendered a quadriplegic
    as a result of a serious motor vehicle accident. He was a passenger in a car
    driven by the complainants mother. The appellant launched a civil suit against
    the mother for some six million dollars. The claim exceeds the mothers
    insurance coverage, and the familys home is at risk. The complainant made her
    allegations against the appellant eight days after his claim against her mother
    was served.

[7]

The complainant and her mother were the only witnesses at trial. The
    complainant was fifteen years of age at the time of trial.

Conviction appeal

[8]

The appellant advances the following grounds of appeal of his conviction:

1.       In his charge to the jury, the trial judge failed to:


(i)

relate the evidence to the issues in the case;


(ii)

instruct the jury on the assessment of the reliability of the witnesses;


(iii)

make clear to the
jury that the fact that the
    complainant was a young witness did not affect the standard for analyzing her
    evidence; and


(iv)

specifically warn the jury of the dangers of convicting upon evidence
    given by parties with an animus against the appellant and instruct the jury on
    what evidence was capable of being confirmatory;

2.       The trial
    judge erred in allowing the videos and transcripts of the complainants
    testimony to be sent to the jury room; and

3.       The verdict is unreasonable.

Errors in the charge

[9]

We are not persuaded that any of the four alleged deficiencies in the
    trial judges charge to the jury amounts to reversible error. While not
    determinative, we note that counsel for the appellant made no objection to the
    trial judges charge to the jury after the trial judge delivered it.

[10]

We
    reject the appellants first assertion, that the trial judge did not
    sufficiently relate the evidence to the issues in the case. As the trial judge
    noted, the real issue was whether the alleged incidents took place. In his
    closing argument to the jury, counsel for the appellant made the defences
    theory clear: the complainant and her mother were motivated to lie in an attempt
    to de-rail the civil lawsuit. The issue for the jury was not complex. The trial
    was brief. The evidence took less than a day and a half. It was fresh in the
    minds of the jurors.  In his closing argument to the jury, appellants counsel
    also reviewed what he argued were frailties in the complainants evidence that
    made her evidence not worthy of belief. While the trial judge might have
    related the evidence to the issues in a more detailed fashion, we are satisfied
    that in the circumstances, he sufficiently related the evidence to the issues
    before the jury.

[11]

The
    appellants second assertion is that the trial judge did not adequately
    instruct the jury on the assessment of the complainants reliability. We
    disagree.  While the credibility, and not the reliability, of the complainant
    was the main issue, the trial judge also directed the jury to consider the
    witnesses character, their intellectual ability, their level of maturity, to
    keep in mind [the complainants] ability to observe and remember what
    happened and to consider the apparent memory capacity of the witness.

[12]

We
    also disagree with the appellants third assertion, namely that the trial judge
    erred in his instructions regarding the standard for analyzing the evidence of
    a young witness. The complainant was 12 years old when she provided one of her
    videotaped statements to the police. The trial judge instructed the jury that:

Young witnesses do not always have the same ability as adults
    to recall precise details or to describe events fully and accurately. For this
    reason, you may choose to regard some inconsistencies in their testimony as
    less significant than they would be if you had noticed them in the testimony of
    an adult. The important thing is to consider whether deficiencies of this sort
    mean that the young witness has misconceived the events she has described. In
    other words, you have to use your good common sense.

[13]

The
    trial judge carefully charged the jury that the Crown must prove the appellants
    guilt beyond a reasonable doubt.

[14]

In
    his charge to the jury, the trial judge highlighted the complainants testimony
    that she did not like the appellant and wished that he would be sent to jail. He
    also reproduced the summary of the defences position provided to him by
    defence counsel, which included the defences position that the complainant had
    a motive to lie.  In the circumstances, this was sufficient.

[15]

There
    is, in our view, no merit to the appellants fourth argument, namely that the
    trial judge erred in failing to provide guidance to the jury on what, in law,
    can amount to corroborative or confirmatory evidence. The complainants
    evidence was that she told her mother about the first incident after it happened.
    In his charge, the trial judge explained:

our law does not require corroboration of any complaint of
    this nature. It is up to you, the jury, to decide whether or not the evidence
    is sufficient to prove beyond a reasonable doubt that the accused is guilty of
    an offence. It does not require anybody else to say yes.

In this case, the mothers evidence perhaps depending on how
    you look at it, might provide some.  She told us about the disclosure. The
    mothers evidence it was a little confused on this, at least I found, she at
    first did not remember when the disclosure was made to her, and then seemed to
    remember that it was made the same night as they went to the play; at least that
    is my memory of it

[16]

Appellants
    counsel concedes that confirmatory evidence is not required in cases of this
    nature.  The trial judge was not using corroboration in any technical sense. 
    His review of the mothers evidence was accurate and favoured the defence
    position.  Use of the term corroboration should be avoided, but in this case
    it caused no prejudice to the appellant.

The video and transcripts

[17]

Nor
    do we agree that the trial judge erred in permitting the jury to view the
    videotape and transcripts of the complainants police interview inside the jury
    room during its deliberations. The trial judge has the discretion to permit the
    jury to do so. An appellate court will interfere with the trial judges
    exercise of discretion to allow the videotaped statement with them during deliberations
    only where the appellant can demonstrate that his right to a fair trial was
    compromised as a result:
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont.
    C.A.), para. 78. The appellant has not satisfied us that his right to a fair
    trial was compromised as a result of the trial judge permitting the jury to
    view the video and transcripts of the complainants statement to the police in
    the jury room.

Unreasonable Verdict

[18]

Finally,
    we are not persuaded that the verdict was unreasonable. The complainants
    evidence made out all of the elements of the offences with which the appellant
    was charged.  While there were frailties in that evidence, a properly
    instructed jury could convict on that evidence.

Sentence appeal

[19]

The
    appellant argues that the sentence imposed on him is harsh and excessive having
    regard to his physical infirmity.

[20]

The
    trial judge struggled to craft a fit sentence.

[21]

The
    appellant was 41 years of age at the time of sentencing. He was a first
    offender and had led an exemplary life. The trial judge noted that the
    appellant is in severe pain, has a colostomy, receives therapy four days a week
    and requires the daily assistance of a nurse to perform basic bodily functions.
    He needs a long list of some medications, including opiates, which must be
    taken several times daily.  He is at a high risk of developing complications. The
    trial judge concluded that a conditional sentence was not available, and, in
    the absence of information with respect to how the appellant might be treated
    while incarcerated, imposed a sentence of 30 months.

[22]

The
    circumstances of this case are extraordinary. On these totally unique facts,
    incarceration is not necessary to meet the objectives of sentencing and, having
    regard to the extent of the appellants physical infirmity, the sentence
    imposed is demonstrably unfit. Accordingly, leave to appeal sentence is granted
    and we allow the sentence appeal and reduce the sentence to two years less a
    day, to be served in the community as a conditional sentence, on the terms,
    including house arrest, proposed by the Crown.

Warren K. Winkler C.J.O.

M. Rosenberg J.A.

Alexandra Hoy J.A.


APPENDIX A

(Appendix may be obtained by contacting the Court of Appeal for Ontario Registry)


