



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Desmanche, 2016 ONCA 17

DATE: 20160111

DOCKET: C59164

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rourke Thomas Desmanche

Appellant

Pamela Munn, for the appellant

Joanne Stuart, for the respondent

Heard and released orally: January 5, 2016

On appeal from the convictions entered on February 6,
    2013 and the sentences imposed on January 9, 2014 by Justice Helen A. Rady of
    the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of manslaughter in respect of the death of
    his infant son, as well as one count of assault for an earlier incident
    involving the child.  He was sentenced to 10 years in jail on the manslaughter
    conviction, plus one year in jail, concurrent, on the assault conviction, after
    credit on a 1:1 basis for his pre-sentence custody.  He appeals from his
    convictions and sentences.

A.      Conviction Appeal

[2]

The appellant appeals from his convictions on one main ground.  He
    submits that the trial judge misapprehended the trial testimony of several of
    the Crowns civilian witnesses and that of one of the medical experts called by
    the Crown at trial.

[3]

We disagree.

[4]

We see no material error in the trial judges appreciation of the
    evidence of the relevant civilian witnesses.  It was open to the trial judge to
    conclude, as she did, that these witnesses, who were friends and neighbours of
    the appellant, testified reluctantly and that they were hesitant to say
    anything at trial that was adverse to the appellants interests.  The trial
    judges observations in this regard formed a proper part of her assessment of
    the witness credibility, a matter squarely within the trial judges domain. 
    Although, as the Crown concedes, the trial judge misquoted the evidence of one
    of these witnesses in one respect, this error was not material to the trial
    judges reasoning process.  That the relevant witness was a friend of and
    supportive of the appellant was borne out by either version of the statement at
    issue.  In these circumstances, the error in question did not occasion any miscarriage
    of justice.

[5]

We reach a similar conclusion concerning the trial judges treatment of
    the experts evidence.  As the Crown acknowledges, the experts report
    misstated the date on which the fatal injury to the appellants child
    occurred.  This misstatement, which the appellant concedes may have been merely
    a typographical error, was not addressed by the trial judge.  However, the
    misstatement did not bear on the core of the experts testimony, which
    concerned the timing of the fatal injury within a 30-minute period, established
    by the timing of the babys crying as overheard by the appellants neighbours
    and the timing of the arrival on the scene of medical personnel.  The experts evidence
    in this regard was supported by the testimony of another properly qualified
    medical expert at trial.  The misstatement in question, therefore, was
    inconsequential and could not have affected the outcome at trial.  We note, in
    this regard, that the evidence implicating the appellant in the assault and
    death of his son, taken as a whole, was overwhelming.

[6]

For these reasons, the conviction appeal is dismissed.

B.      Sentence Appeal

[7]

The appellant also seeks leave to appeal sentence.  As advanced during
    oral argument, the only issue is whether the trial judge erred by failing to
    accord the appellant enhanced credit for pre-sentence custody.  In light of the
    fresh evidence filed on appeal, the Crown acknowledges that enhanced credit was
    available in the circumstances.

[8]

The trial judge did not have the benefit of the Supreme Courts decision
    in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575 or this courts
    decision in
R. v. Slack
, 2015 ONCA 94.  In light of those decisions,
    it is our view that credit should have been afforded to the appellant for his
    pre-sentence custody at the rate of 1.5:1.  We see nothing in the Supreme
    Courts recent decision in
R. v. Lacasse
, 2015 SCC 64 that dictates a
    different conclusion.

[9]

Accordingly, leave to appeal sentence is granted, the sentence appeal is
    allowed and the appellant is granted credit for his 1,156 days of pre-sentence
    custody at the rate of 1.5:1.  This results in a total credit for pre-sentence
    custody of 1,734 days or 4.75 years, yielding a residual sentence of 5.25
    years imprisonment.  In all other respects, the sentences imposed remain
    unchanged.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


