



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    that could identify the complainant or a witness shall not be published in any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. J.N.D., 2017 ONCA 666

DATE: 20170822

DOCKET: C63195 & C63327

Doherty, LaForme and Rouleau JJ.A.

C63195

BETWEEN

Her Majesty the Queen

Appellant

and

J.N.D.

Respondent

C63327

BETWEEN

Her Majesty the Queen

Respondent

and

J.N.D.

Appellant

Katherine Beaudoin, for Her Majesty the Queen

Michael W. Lacy and Bryan Badali, for J.N.D.

Heard: August 16, 2017

On appeal from the conviction entered on January 28, 2016
    and the sentence imposed on December 14, 2016 by Justice Patricia C. Hennessy
    of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

J.N.D. was convicted of historic sexual offences against his cousin when
    she was a young girl. He was sentenced to two years less a day in jail and
    three years probation.

[2]

J.N.D. appeals his conviction arguing that the trial judge engaged in an
    unbalanced approach to the evidence resulting in a reversal of the burden of
    proof and a failure to give effect to the presumption of innocence.

[3]

The Crown seeks leave to appeal J.N.D.s sentence and argues that the
    trial judge improperly applied
R. v. Gladue
, [1999] 1
    S.C.R. 688

principles and underemphasized
    deterrence and denunciation, leading to a manifestly unfit sentence.

Conviction Appeal

[4]

This was a straightforward case where the trial judge had to consider
    the testimony of the complainant, other witnesses who confirmed material
    aspects of the complainants evidence, and the denials given through the
    testimony of J.N.D. She believed the complainants accounts of the offences and
    provided clear and comprehensive reasons for doing so. She also provided
    detailed reasons for disbelieving critical portions of J.N.D.s evidence. Her
    reasons in all respects were fair and addressed the correct issues.

[5]

We disagree with J.N.D.s assertions that the trial judges approach to
    the evidence was unbalanced, or that she failed to give effect to the
    presumption of innocence. She clearly appreciated, articulated and applied the
    burden of proof to the totality of the evidence. Her conclusion that certain
    inconsistencies in the testimony of Crown witnesses did not leave her with a
    reasonable doubt, while aspects of J.N.D.s testimony led her to reject his
    evidence, does not demonstrate any error in her analysis of the totality of the
    evidence. It does not, as argued, demonstrate that she applied a different
    level of scrutiny to the Crown and defence evidence.

[6]

The conviction appeal is dismissed.

Sentence Appeal

[7]

The more difficult question for this court is the Crowns appeal against
    sentence. At the outset, the Crown must overcome the high hurdle required for
    this court to intervene. That is, absent an error in principle, failure to
    consider a relevant factor, or an overemphasis of the appropriate factors, this
    court can only intervene to vary a sentence imposed at trial if the sentence is
    demonstrably unfit.

[8]

The trial judge was aware that she was sentencing J.N.D., an Aboriginal
    man from a reserve in the region, for sexual assault and sexual touching and
    observed: These offences are serious and call for a serious response. She
    referred to and considered both aggravating and mitigating factors applicable
    to J.N.D. and these offences. Importantly, the trial judge had the advantage of
    both a pre-sentence report and a
Gladue
report
[1]
and noted correctly that the essence of the Supreme Courts decision in
Gladue
is remedial in nature.

[9]

The trial judge then reviewed the
Gladue
principles extensively
    in her reasons and applied them to J.N.D. It is obvious to us that the trial
    judge was making every effort to apply the principles mandated in
Gladue
in the face of the options available to her. Her decision, while understandably
    at odds with what the Crown believed was appropriate in the circumstances, does
    not reveal any reversible error and is entitled to deference.

[10]

The offences in this case occurred in the north, which has a strong
    connection to Aboriginal communities. The trial judge, most importantly, is
    experienced in presiding over criminal trials in that region including those
    involving an accused with a connection to the Aboriginal communities. She was uniquely
    situated to determine the just and appropriate sentence balance of the societal
    interests and the moral blameworthiness of J.N.D. in all the circumstances of
    these offences. At all times the trial judge took into account the needs and
    current conditions of and in the community: see,
R. v. M. (C.A.)
, [1996]
    1 S.C.R. 500, at para. 91.

[11]

The type of assessment undertaken by the trial judge in the particular
    circumstances of this case is precisely that which attracts judicial deference.
    Leave to appeal sentence is granted, the appeal is dismissed.

Doherty J.A.

H.S. LaForme J.A.

Paul Rouleau J.A.





[1]

A
Gladue
report is a type of
    pre-sentencing report that a court can request when considering sentencing an
    offender of Aboriginal/Indigenous background under s. 718.2(e) of the
Criminal
    Code
.


